Archive for March, 2012

DEP Quietly Launches New Boat Ramp Fees

March 22nd, 2012 2 comments

Christie Vetoes Millionaire’s Tax – But Boaters, Kayakers, Canoeist Pay


[Update: 6/20/12 – I am not certain of this, but, in what may be a minor victory, I think I heard the Canal Park Superintendent just advise the D&R Canal Commission that public access (boat launch?) at the Lambertville ramp is free. Apparently fees not allowed under a prior agreement with rowing or boat club? Did I get this right? – Sorry, I the briefing was rapid and not detailed. end update]

Governor Christie has made it abundantly clear that he opposes new taxes on the rich and corporations – but his DEP has no problem charging boaters, kayakers, canoeist and even tubers with steep new “boat ramp access fees”.

launch1According to the D&R Canal State Park Superintendent, new fees will be imposed on Delaware River access points in D& R Canal State Park at Kingwood, Byram, Bulls Island, and Lambertville.

A quiet day on the river will now costs $12 ($60 for a season pass).

I don’t recall these fees being mentioned in DEP’s November 2011 “Sustainable Parks Funding Strategy” (or in Governor Christie’ press release)

I wonder if these new fees will be as unpopular and opposed as the saltwater fishermen registry issue. Guess we will see come the Legislature’s FY ’13 Christie Budget crunch time.

DEP refused to impose $5 per year registration fees on saltwater fishermen, in a program where revenue shortfalls have forced closure of NJ fisheries.

Yet DEP finds no problem with $12 daily fees for low impact canoeist and kayakers for use of an asset that has been paid for long ago and requires virtually no DEP staff support or maintenance costs.

Chalk that up to the triumph of politics over policy.

The season runs from Memorial Day to Labor Day.

DEP apparently still has not figured out if the new fees will apply to firemen’s access ramps located just south of Lambertville and in Titusville.

DEP was unable to explain how the new access fee system would be administered – possibilities still under consideration include a voluntary system or a system of tags on trailers or boats.

It was not described how the fees would be enforced, e.g. would state marine police now ask boats, canoes, and kayaks on the river where they entered and if they paid a ramp fee?

DEP apparently understands that the new fees will cause many people to evade the fees by entering the water along the banks of the river.

The new fees will create unintended consequences and lead to a host of  major new problems, including damage to vegetation and habitat along sensitive river banks, erosion, litter, and safety, trespass and nuisance issues.

The fees do not distinguish the types of craft, i.e. low impact self powered craft like canoes and kayaks will pay the same fee as polluting powerboats and jet skis.

Sounds like this was poorly thought out and not ready for prime time.

trailers access Lambertville boat ramp today - note Pennsylvania plates

trailers access Lambertville boat ramp today - note Pennsylvania plates

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Bulls Island Update – D&R Canal Commission Engaged

March 21st, 2012 1 comment


DEP Planning to Remove Scores of Magnificent Old “Dangerous Trees”

An important update on Bulls Island.

DEP Commissioner Martin has not responded to my March 10 letter. I’m not holding my breath.

However, on March 15, DEP issued a press release announcing closure of the campground and a plan to remove “hazardous trees” in response to my March 10 post, which was picked up by the Hunterdon Democrat on March 14.

So, I appeared before the D&R Canal Commission this morning to give the Commission a heads up and ask a few questions about what is going on at Bulls Island. The Commission has regulatory jurisdiction over activities at Bulls Island.

DEP is a member of the Commission and both the D&R Canal Park Supervisor and NJ Water Supply Authority (NJWSA) representatives were in attendance, so I was provided an opportunity to raise issues and solicit info from them.

In response, the Commission agreed to conduct a site inspection in the near future.

Here is what I learned:

There are 3 different projects underway that I have flagged – the third is by far the most significant – after the Commission hearing I went back for more photos:

  • maintenance dredging of the D&R Canal by the NJ Water Supply Authority under a US Army Corps of Engineers permit;
  • bulldozing of flood debris and sediments along about 400 feet of the river. This was done by NJ WSA crews and is not permitted by USACOE, DEP or the D&R Canal Commission. It is likely that there are several regulatory violations involved;
  • a “tree hazard assessment” and emerging plan to cut and remove scores of large old “hazardous” trees.

Canal Dredge


The Commission did not seem interested in pursuing the entire matter and were very reluctant to criticize NJWSA activities.

The Commission felt that this was a routine maintenance dredge operation conducted under a USACOE permit and was routine maintenance they supported.

I asked why there were no drainage or soil erosion & sediment controls in place along the Canal or the river (on 60+ degree slopes) and why equipment staging was done in a way that damaged vegetation, habitat, and soils and caused unnecessary negative visual impacts. No response, so I guess I will have to OPRA the permit.

I did notice installation of a boom along the Canal since I was last there on March 10, but that only captured floatables, not suspended solids and sediments:


The limitations in the boom are particularly problemmatic for trout, and ironically, DEP trout stocking operations were conducted today in the Canal, about 100 feet downstream from this location:


Bulldozing flood debris along the Delaware River

The NJWSA was responsible for the bulldozing operation that killed vegetation and buried tires and other debris along the river. About 400 feet of riverfront looked like a parking lot (see photo above).

Just before I left of the Commission meeting this morning, I got an email from DEP claiming to have conducted a Dash for trash. DEP claimed:

We did sponsor a cleanup at Bulls Island for our AmeriCorps Week -Dash for the Trash event and worked down by the riverbank.  A total of 29 volunteers collected 45 bags of trash, 20 bags of recyclables, a foam board, a sink, an old ringer and washer, 10 tires, socks, scrap metal and several plastic tarps.

Take a look at the pictures I shot today – I saw several tires. DEP volunteers may have dashed for trash but they sure missed a lot of tires – and there are no soil erosion/sediment controls, despite fact that soil is bulldozed literally right into the river:



Hazardous Tree Removal Plans

Most important is the pending DEP plan to cut down and remove so called “hazardous trees”

scores of huge old tress slated to be cut and removed

scores of huge old trees slated to be cut and removed

I asked DEP about that. Initially, DEP said that there was litigation so they could not discuss specifics.

But the DEP representative on the Commission (from the Division of Parks & Forestry) did say that DEP hired a professional forester who conducted a “hazard assessment” growing out of last year’s tragic death of a camper. DEP stated that they issued a press release that said the camp ground is closed and “hazardous trees” will be removed.

I asked detailed questions about the methodology, criteria, and standards for such a “tree hazard” assessment. I also asked for their tree removal plan.

DEP refused to respond or divulge any details, so today I filed an * OPRA request for the consultant’s Report (hazard assessment) and DEP plans to remove these trees.

I advised DEP and the Commission that my fear is that many huge old tress will be removed, when there are much less damaging alternative risk management approaches to reduce any legitimate tree hazards.

Tree removal would destroy unique wildlife habitat, especially for birds, harm water quality, especially for trout, and have significantly negative visual impacts to park visitors.

Also, over time, because tree roots hold soil in place, significant tree removal could result in the washout of the entire island during flood events.

Less damaging risk management alternatives include (off the top of my head) closing the campground, removing picnic areas, removing the playground and restrooms, closing the area on windy days or after floods, and limiting public use to walking on trails.

Any tree removal would require D&R Canal Commission approval and possibly DEP permits.

My fear is that the DEP will anticipate controversy and ram it through before public awareness and opposition builds

The Commission will review any DEP tree removal plan before it is executed.

We will keep you posted and strongly urge parks lovers to organize NOW and block this developing DEP disaster before it gain any more momentum.

[* Here is the OPRA request:

On 3/21/12, the DEP representative to the D&R Canal Commission stated that DEP has contracted with a professional forester to conduct a tree hazard assessment at Bulls Island and that hazardous trees would be removed.

The Bulls Island Park Advisory states: “a tree health assessment has found that this area is susceptible to silt buildup from repeated floods that weakened roots of trees in the area.”,

I request all records related to the Bulls Island tree health and hazard assessment, including:

1) the consultant’s tree health assessment report, including identification of dangerous trees and the basis and methodology for that finding;

2) all DEP tree inventory and/or health assessment reports

3) the DEP identification of and plan to remove dangerous trees

4) the DEP plan to restore the site to natural conditions

5) all DEP staff emails, memoranda, correspondence, and telephone records and meeting notes regarding 1-4 above

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Dupont Corporate Flack Misleads Residents and Planning Board

March 20th, 2012 4 comments

Dupont Proposed Lake Cleanup Plan is Dead – Expanded Plan Required

[Update: Looks like we have a minor victory. Shortly after this post, the Pompton Lakes Planning Board apparently decided NOT to hear the Dupont mining permit application tonight. It is not clear if the applicant Dupont requested that the application be withdrawn and/or removed from the agenda, or whether the Planning Board decided to remove it. Regardless, once an application is listed in a public notice as an agenda item, any decision to revise the agenda should be explained, done in the open, and on the record – not like it was done here, via website notice. Looks like more Dupont dominated inept government in Pompton Lakes.]

A brief update on Dupont Pompton Lakes developments.

Despite the fact that critical review comments by the US Fish and Wildlife Service (USFWS) effectively killed Dupont’s proposed Acid Brook Delta cleanup plan in Pompton Lakes, the Dupont Corporation is still seeking a local soil mining permit for the derailed cleanup plan.

Key USFWS findings as Superfund Natural Resource Trustee:

  • the Service does not believe that the proposed remedial action, as currently planned, will completely address historical releases nor be sufficient to protect against future injury to Federal trust resources from residual contamination originating from the [Dupont] PLW
  • we believe that significant contamination will remain
  • thresholds to evaluate risk to both fish and avian fauna are antiquated and not protective

EPA has considered USFWS comments and strong public criticism and decided to shelve a proposed RCRA permit modification required to implement the Dupont Lake cleanup plan.

But curiously, tonight the Pompton Lakes Planning Board will conduct another public hearing on a local soil mining permit required for Dupont’s  proposed plan to dredge a small portion of the Acid Brook Delta area of Pompton Lake.

As part of that effort, a Dupont corporate flack now has jumped into the debate behind the scenes to defend the derailed cleanup plan.

It seems like Dupont is trying to lock into an incomplete and scientifically flawed cleanup plan and block EPA from expanding Dupont’s cleanup obligations to reflect the USFWS concerns.

The Dupont flack’s email fails to say anything about the status of EPA RCRA permit or the USFWS concerns about the Dupont proposed Lake dredging project.

Instead, Dupont is misleading residents and the Planning Board via email replies to various questions being raised by residents (see below email exchange and my pushback against Dupont).

Dupont’s proposed cleanup plan has been scientifically discredited by the USFWS, who found the ecological science supporting the plan “antiquated” and “not protective”.

USFWS also found that unacceptable levels of toxic mercury would be allowed to remain in Lake sediments and has opened Natural Resource Injury restoration negotiations with Dupont.

As a result, EPA is not able to issue a final RCRA permit that relies on Dupont’s flawed science. That is why EPA withdrew the proposed draft permit.

So, now is the time for EPA to conduct a de novo review of Dupont’s science and overall cleanup approach.

We have urged EPA Region 2 Administrator Judith Enck to:

1) expand Dupont’s mercury cleanup obligations in a scientifically credible way that characterizes “background”,  accounts for Dupont’s historical on and off site releases of mercury, derives an ecologically based cleanup standard, and removes all contaminated soils and sediments in Pompton Lake and up and down river;

2) conduct new sampling of soils, sediments, and biota (wildlife tissue) to document the full extent of on and off site releases and natural resource injuries;

3) rescind the prior “RCRA permit compliance schedule modification” and consolidate new site wide and off site remedial requirements in an enforceable RCRA Order under RCRA Section 3004(u), 3008(h) or relevant Superfund enforcement authority;

4) require that Dupont pay for replacements and/or repairs to improperly installed vapor intrusion mitigation systems.

5) meet with the residents on the community to assure adequate input on 1-4 above.

Here’s my email note to Dupont corporate flack, Ed Seger:

Mr. Seger – responding to your reply to Mr. George Popov:

Surely you and Dupont corporate level managers must realize that:

1)  the “best available technology” has absolutely nothing to do with Dupont’s cleanup obligations or how those obligations are derived;

2) the US Fish and Wildlife Service comments found Dupont’s ecological science – which forms the basis of the Acid Brook Delta (ABD) proposed remediation – “antiquated” and “not protective”, among other things;

3) USFWS found numerous scientific and technical flaws with Dupont’s proposed ABD remediation plan and determined that unacceptable levels of mercury would be left behind;

4) given USFWS comments and public criticisms of the Dupont ABD plan, that proposed plan is effectively not approvable as a RCRA permit modification.

We believe that EPA is reconsidering – in de novo fashion – Dupont’s remedial approach to ABD and other mercury impacted areas both on and off the Dupont site.

Given the above, it is premature and disingenuous to pursue a local soil mining permit at this time.

Your replies, please.

Bill Wolfe

Here is Seger’s email to residents questions:

George: (Popov)

Many of the documents are voluminous due to the amount of information they contain and as such are too large to transmit via email.  However they have been provided to the Pompton Lakes Library for public use and some can be found on the EPA website .  As we have encouraged everyone interested in this project, a review of all the documents prepared for this project is helpful in order to develop a comprehensive understanding of the conditions within the lake and the information used to develop the remedial approach.

With regards to your original question, a description of the dewatering process to be used along with the laboratory testing data is provided within the final CMI Work Plan submitted to the regulatory agencies for review in September 2011.  Results show that 0.5 parts per billion or less are present in the water which would be returned to the active work area.  It is important to note that the remainder of  the lake is separated from the work area by not only a silt curtain but with a rigid barrier as well.  In addition we will monitor water quality outside the work area.  This monitoring program is also described within the CMI Work Plan.

Below are answers (in blue text) to your most recent questions.

Here are Dupont’s incomplete and misleading  replies to specific questions by residents:

In order to ensure that you receive exactly what you are requesting, we would suggest you contact the regulatory agencies for this material.

The sediment impacted within the remediation area described in the CMI Work Plan will be removed using the best available technology to achieve the remedial  goals which have been developed to be protective of people and the environment.  Excavation of an average 18 inches and up to several feet across the area is supported by over one thousand (1,000) environmental samples collected from within the lake during the Remedial Investigation process.  These samples delineate where contamination exists.  The data collected during the Remedial Investigation was also used to determine the extent of vertical removal to ensure that dredging was completed to a zone where sample results were below remedial action objectives.  Therefore, additional samples are not warranted to further define vertical extent of contamination as they have already been collected during the Remedial Investigation.

As described in the CMI Work Plan, an average of 18 inches of sediment will be removed across the remediation area.  A survey was not completed to identify where contamination is present, but was based on numerous locations where actual environmental samples were collected and analyzed by a certified laboratory during the Remedial Investigation process.  Detailed information related to the results of this sampling are presented in the Remedial Investigation Report.  We believe that the extent of contamination requiring removal has been determined accurately and the remedy proposes the dredging of all impacted sediment within the remedial area to an elevation where the analytical samples results are below the remedial objectives.  The dredge utilizes highly accurate GPS technology which along with an elevation survey will be used to ensure that the correct removal elevation was achieved.  This process is described within the CMI Work Plan.

This is not part of the soil mining permit we are applying for and as such there are no plans to collect samples.  However, wells within the plume area are sampled on a semi-annual basis for site related constituents. Concentrations within these wells are continuing to go down and in the area you are referring to have shown decreases to below the drinking water standards.  Historical data for these wells is contained in the document entitledComprehensive Groundwater Monitoring Program,dated November 1995.  In addition the semi-annual sampling results are provided in an annual report to the regulatory agencies.  These reports are available in the Pompton Lakes Library.  The 1995 document was reviewed by the EPA TASC contractor and contains sample results for those constituents related to the delta remediation.  As shown in this document mercury was not detected in off-site wells.

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Highlands Chairman Rilee Credibility Is Questioned

March 19th, 2012 No comments

As promised, I wanted to followup on an important claim I made last Thursday night in public testimony after the Highlands Council voted to remove Executive Director Swan.

Here’s what I said to Chairman Rilee: (watch it, at time 1:37:40)

I’d just like to make one point. In response to Councilman Dressler’s question, you indicated that you had problems and concerns with Ms. Swan before, before you assumed, before you underwent Senate confirmation.

As you will recall – and I’ll go back to the transcript to document this – as you will recall, during your confirmation hearing I questioned your veracity and I questioned your integrity.

You did not disclose to the Senate Judiciary Committee any concern with Ms. Swan or any concern regarding the direction of this Council or with respect to the Master Plan.

And tonight, you’ve said exactly the opposite.

And that’s fundamentally dishonest.

And you, sir, have no integrity.

Here was Rilee’s reply, where, in an angry exchange, he engaged in more lies:

You tried to play that game at the Senate as well.

Sir, you often [me interrupting: “there’s a transcript“]

There is …

You often make statements and then send a followup letter that says “I retract” [me interrupt: “I don’t retract anything, don’t lie again“]

Senator Smith asked me if I had dealt with Eileen Swan. I answered that I did. And then he asked me if I ever got my answers and I said no I didn’t.

So, I did go back and listen to the Rilee Senate Judicary Committee May 19, 2011 confirmation hearing (you can listen here). I wrote about the hearing here.

Senators Smith, Weinberg and Sarlo asked repeated focused questions about Mr. Rilee’s prior negative comments as a local official and on his current views on the Highlands Act, the Council and the Master Plan. Smith and Weinberg repeatedly asked about the questionnaire Rilee filled out and asked him: What changes would you make ?

Rilee’s repeated vague and evasive answers frustrated Smith and Weinberg.

But Rilee did specify 4 policy related problems he had, which were: 1) inappropriate infringement of home rule; 2) taking of private property without just compensation; 3) flawed science with respect to mapping; and 4) lack of funding to compensate property owners.

Senator Smith concluded by asking Rilee this specific on-point question:

What is your opinion of the current Executive Director?

Mr.Rilee replied:

All my dealings with her have been very friendly, very professional. I think she is a very nice person.

Like I said, there have been some answers we didn’t get, but I’m not sure if they were finalized. That goes to some of my answers about not knowing what’s been done through the Council because I think that’s been a work in progress. It’s not something that was defined in 2009 – it’s been a work in progress since, so it’s hard for me to answer some of those questions.

I have, personally, no issues with the Director at all. All of my dealings with her have been very professional, very friendly.

So, under oath, during his May 2011 confirmation, Rilee told the NJ Senate he had “no issues at all” with Swan.

Yet 9 months later, he now tells fellow Councilman Dressler (a former Judge) that he had issues with Swan BEFORE joining the Council.

Both replies can not be true.

[for the record, Rilee is lying again. I did not retract my claims at the Judiciary Committee.

I did send the Committee a followup note after listening to the tape to clarify that I staffed the Highlands task force as a DEP employee – I was not a member of the Taskforce. My testimony was not clear and could have been misinterpreted on that technical issue.

I also sent the Highland Council a note to correct and clarify portions of my recent testimony concerning the Tennessee Gas Pipeline exemption.

I wrote about BOTH clarifications here and wrote a comment on the NJ Spotlight story to clarify that as well.

Where I come from, it is important to correct or clarify any ambiguity, misunderstandings, or errors you create or become aware of.

Taking responsibility is a sign of integrity where I’m from.

Apparently not to Mr. Rilee.

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Reflections on a Highlands Massacre

March 19th, 2012 1 comment

Now that the dust has begun to settle and all the press stories and critical editorials have been written, I’d like to reflect briefly on a couple of things.

While I liked Star Ledger columnist Tom Moran’s piece, it was Mike Catania’s historical allusion to the Nixon Administration’s “Saturday Night Massacre” that really captured the essence in terms of what Swan’s firing means for governance going forward.

So, furthering the path Catania began, I will begin, ironically, by reference to the work of John W. Dean, Nixon’s  White House Counsel who some have called the “master manipulator of the Watergate coverup”.

Dean’s 2006 book “Conservatives Without Conscience” is one of the best portraits of what’s gone wrong with the Republican party. And Dean’s framework fits Governor Christie and now Highlands Chairman Rilee to a tee.

Dean traced the evolution of conservatism and warned of what he called “the growing presence of conservative authoritarianism“:

Conservatism has noticeably evolved from its so-called modern phase (1950-94) into what might be called  a post-modern period, and in so doing it has regressed to its earliest authoritarian roots. Authoritarianism is not well understood and seldom discussed in the context of American government and politics, yet it now constitutes the prevailing thinking and behavior among conservatives. Regrettably, empirical studies reveal, however, that authoritarians are frequently enemies of freedom, antidemocratic, antiequality, highly prejudiced, mean-spirited, power hungry, Machiavellian, and amoral. They are also often conservatives without conscience who are capable of plunging this nation into disasters the likes of which we have never known.” (p. xii) [emphases mine]

What better words describe the Swan debacle? “mean-spirited, power hungry, Machiavellian, and amoral” and “capable of plunging into disasters”

Dean then goes on to discuss psychological perspectives on conservatism and describe a leading academic study on some of the characteristics of conservative authoritarians:

… people become or remain political conservatives because they have a “heightened psychological need to manage uncertainty and threat.” More specifically, the study established that the various psychological factors associated with political conservatives included (and here I am paraphrasing) fear, intolerance of ambiguity, need for certainty or structure in life, overreaction to threats, and a disposition to dominate others. (emphases mine, p. 30)

From a governing standpoint, Chairman Rilee has destroyed his own personal credibility and ability to lead the Council.

Despite the fact that the plan to fire Swan was leaked and reported in the media well before the public hearing (thus giving plenty of time for the Governor’s Office to reconsider and save face), they went forward with it anyway.

Rilee maneuvered behind fellow Council members’ backs, was dishonest during his Senate confirmation, and thereby has made it impossible for anyone to trust him. Ever.

Rilee has destroyed the Council’s independence and shown that it is little more than a pawn of Trenton and Governor Christie.

Rilee has deeply and irrevocably polarized the work of the Council. Conservation groups are on the warpath and the Council’s public perception as a professional regional planning entity and an honest broker has vanished.

Given these circumstances, what kind of planning professional would want to take the Executive Director’s position and replace Swan?

Is the Rilee hand picked new Personnel Committee deluded to think they can conduct a national search and attract a strong candidate?

Rilee has made it virtually impossible to attract a qualified professional replacement.

But, breaking the Council just may have been the Governor’s goal here.

With that in mind, I must note that although Eileen Swan has gotten virtually all of the attention, the resignation of Tom Borden is actually more damaging.

Tom is one of the best environmental lawyers in NJ.

Tom’s disarming smile, personal charm, and self effacing manner may fool some, but behind that wonderful persona rests a superb legal mind that knows how to deploy the levers of power.

Long before Tom joined the Council, he had tremendous accomplishments as a Deputy Attorney General representing DEP. DAG Tom focused primarily on water resource issues, where he worked closely with another virtually anonymous professional named Steve Lubow in crafting and defending NJ’s water quality standards.

After leaving the AG’s Office, few realize that Tom, representing clients in Clinton Township, filed a petition for rule making with DEP Commissioner Shinn seeking to upgrade a stream to Category One as a means to block a development project.

That petition was denied by Shinn, but it later was approved by DEP Commissioner Brad Campbell and became the framework for the hugely successful “Category One” initiative and subsequent 300 foot buffers.

The anti-degradation regulatory policy Tom deployed in the Clinton petition not only drove the C1 program, it became a key part of the framework of the Highlands Act.

Tom has had a huge positive impact on NJ’s environment, so, wherever he goes from here,  I hope he stays engaged.

And last, although I have no evidence to support it, my gut tells me and I can help but sense that the fact that Swan was a strong woman had something to do with this.

Authoritarian men tend to have trouble with strong women.

It will be very difficult for this Council and the new Executive Director and management team to climb out of the hole Governor Christie and Chairman Rilee have dug.

And that is the most disastrous consequence of Swan’s firing.

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