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US Army Corps Issues Cease & Desist Order – But DEP Looks The Other Way To Generate Concessions Revenue Under Christie Parks Privatization Plan 

DEP Ignores Wild & Scenic Designation and Severe Flooding Risks

Typical weekend scene at the Hot Dog Man - Rt. 29 Kingwood, NJ

Back on June 29, after a meeting of the Delaware River Wild and Scenic Management Committee,  I reported that:

On the NJ side of the river, the “Hot Dog Man” and Bull’s Island got the most discussion.

Until that meeting, I was unaware of the apparently locally infamous “Hot Dog Man”, who operates a rather large tubing and food business along the Delaware River in Frenchtown.

Residents complained of destruction of the shoreline vegetation, pollution, riverbank erosion, illegal structures, litter, and other nuisances.

I was outraged by what looked like total disregard for a stretch of a nationally designated Wild and Scenic River.

Told by residents that the operation did not have DEP or federal permits, I was amazed at what appeared to be blatant violations of several state and federal environmental laws.

I spoke with residents after the meeting and promised to visit the site and followup, particularly on the DEP and federal permit issues. But was too busy with other stuff at the time.

Well, it looks like someone was paying attention (and while I take credit for Bull’s Island, this one wasn’t me!), because the Philadelphia Inquirer reports that the US Army Corps of Engineers dropped the enforcement hammer:

Last month, the Army Corps of Engineers issued a cease-and-desist order to Crance; reprimanding the tubing tycoon for installing structures, such as a floating food stand, picnic tables, wooden stairs and signs in and around the Delaware River. …

The Hot Dog Man shuttles about 70,000 tubers and kayakers down the river each summer season while hawking burgers, hot dogs, sodas and snacks. He launches his customers from a dock in Frenchtown, N.J., and sells food from his pontoon boat along the shores of Adventure Island, a tiny island he owns in Upper Bucks. …

The Army Corps, which oversees any structure built in and along the river’s shoreline, cites numerous violations by the Hot Dog Man, including sandbags (used as stairs), a wooden staircase, picnic tables and several advertising signs, according to the July 12 cease-and-desist order.

The US Army Corps does oversee structures along the river, but so does NJ DEP under the NJ Flood Hazard Control Act. Under that law, development and disturbances in the floodplain require DEP “stream encroachment” permits.

DEP should be particularly vigilant in regulatory oversight not only because of the Delaware’s Wild and Scenic River designation and the negative impacts on the D&R Canal State Park, but because of severe downriver flooding (e.g. see: Governor Christie Tours Delaware River Flooding in Lambertville – and the Report of  the Governor’s Delaware River Flood Mitigation Task Force

Any structures built in the floodplain make downriver flooding worse.

Which leads to the question about why a business – with a lease from DEP to operate on State land – was not required to secure DEP permits and why DEP has not taken the same enforcement action as the US Army Corps.

But it’s worse…

Apparently, the violation was reported to the US Army Corps by the Supervisor of the D&R Canal State Park – a brave move for which she has come under personal attack by the Hot Dog Man as engaging in some kind of retaliatory personal vendetta.

[Note: The fact that a NJ State Park Supervisor had to refer an egregious  violation to the US Army Corps instead of her own DEP enforcement staff speaks volumes.]

But instead of supporting their own Park Supervisor and criticizing the egregious violator, DEP undermined her and is supporting this egregious violation. Here’s DEP press office comment:

“We’re not looking to have any kind of feud with Mr. Crance. He runs a good business that thousands of people enjoy,” said New Jersey DEP spokesman Larry Ragonese.

Ragonese maintains the DEP wants to be sure Crance’s river structures are safe and properly permitted.

So, why has DEP not taken enforcement action for this egregious violation (which triggered a cease and desist order by the USACE, an organization not known for environmental sensitivity)?

The reason DEP has looked the other way on blatant violations is because DEP has adopted Governor Christie’s vision and pauper policy for the State parks.

Governor Christie’s  “Sustainable Parks Funding Strategy” (see also Governor Christie’ press release) seeks to maximize concession revenues in State parks and to privatize commercial revenue generating operations in State parks.

The head of DEP’s Parks and Natural Resource programs, Assistant Commissioner Rich Boornazian,  is a former real estate hack, with no environmental training or experience.

At the same time, DEP has failed to collect lease revenues from major corporate Parks land users, like oil and gas pipelines and electric power transition lines (see this from our friends at PEER:

FAIR MARKET VALUE LEASES COULD FUND JERSEY PARK SYSTEM — Shale Gas Pipeline Highlights State’s Failure to Collect Full Payments from Utilities

… Over the last several years, a series of audits by the Office of Legislative Services found major flaws in the DEP Office of Leases and Concessions, most notably its failure to charge fair market value or collect overdue lease and concession payments. In response to these audits and PEER advocacy, the Legislature mandated that DEP “conduct a re-appraisal of the rents and fees charged for all residences and other buildings and structures, and for utility easements and right-of-ways, located on State park or forest lands to ensure they reflect current fair market values and will continue to do so” (P.L. 2008, c.31).  DEP was then supposed to integrate this with its plan to fund state parks and forests, a plan due on July 1, 2009.More than two years after this statutory deadline, DEP has done neither mandated task.  Instead the Christie administration has explored a number of small revenue measures to commercialize parks, such as selling corporate naming rights for park facilities and privatizing various park operations.“As this new lease richly demonstrates, charging fair market value for utility easements from the energy industry, as the state is required to do, would be a major funding source for depleted parks and state lands budgets,” Wolfe added.  “If the Christie managers want to run the state more like a business, it should start by collecting the rents truly owed.  Doing this basic job would eliminate the need to panhandle in the parks with chintzy privatization schemes.”

(see also: DEP Parks Funding Plan Can Start By Collecting The Rent)

So, instead of collecting rents owned by their corporate friends, the Christie DEP increases user fees (e.g. new boat ramp launch fees) and promotes illegal and destructive schemes like “The Hot Dog Man”.

This is what happens under DEP Commissioner Martin’s vision of DEP promoting economic development and revenue producing private concessions in state parks.

[Update: I just submitted the following OPRA request to DEP – I will keep you posted on the reply.  

Ding Dong the Witch is Dead

The fact that critical life and death decisions and the health of the planet can be determined based on flawed economics in corporate dominated back room deals should outrage all Americans.

Let’s hope Sunstein’s departure can shed some light on and engage dialogue on those issues.

Cass Sunstein, President Obama’s head of the powerful but virtually invisible Office of Information and Regulatory Affairs (OIRA), is stepping down (see the Washington Post and New York Times and Huffington Post for excellent coverage).

OIRA review and approval is required before any major federal regulation can be approved. Sunstein leveraged that role – with direct access to his close friend and former University if Chicago colleague, President Obama – to wield enormous power in a destructive way.

Sunstein was an advocate of cost benefit analysis – and other flawed pro-industry tools used to promote a corporate agenda.

He used those tools not only to block, weaken, and delay regulations, but also to provide an unprecedented level of corporate access and influence on regulatory policy.

According to a report by the Center for Progressive Reform: Behind Closed Doors at the White House: How Politics Trumps Protection of Public Health, Worker Safety, and the Environment,  astonishingly, Sunstein’s Office  intervened to change over 80% of EPA regulations to benefit industry at the expense of the environment.

I criticized Sunstein’s role in killing a few major EPA regulations, including the ozone standard and toxic coal ash regulations (see:

• Obama Withdraws EPA’s Proposed Ozone Standard – Lisa Jackson Bends Over and Says Thank You
• Obama’s Cave on EPA Ozone Standard Was Not Unexpected
• A Smog of Euphemism and Spin
• Obama WH Over-Ruled EPA Scientists on Coal Ash Regulations
• EPA Caves on Coal Ash Regulation

I also have written briefly about the technical and ethical flaws in cost benefit analysis as a policy tool, where, among other things, it was used to kill NJ DEP drinking water standards, see:

• The Role of Economics at DEP
• Bob Martin Comes Out
• The Price of Life in Martinville – Where Life Is Cheap
• Christie DEP Says Your Life is Worth $404,103

The same flawed and destructive cost-benefit analysis policy was a core principle of NJ Governor Christie’s “regulatory relief” policy under Executive Order #2. That policy and Executive Order have virtually frozen all progress on the regulatory front.

It also has been used to provide a rhetorical rationale to rollback 30 years of history in NJ environmental leadership and to support Republican political attacks on “job killing regulations” and “red tape”.

Just what the Chamber of Commerce ordered!

NJ Governor Christie’s “Regulatory Czar” Lt. Gov. Guadagno was Sunstein’s counter-part in NJ (see: Christie Regulatory Czar Given The Power and Tools to Rollback Environmental and Public Health Protections

Cost benefit principles also were injected in the Christie Energy Master Plan to stymie progress and rollback energy conservation and renewable energy goals, funding, and programs.

Obama’s Executive Order on regulatory review shared many of the same flaws and much of the same pro-corporate policy agenda as Governor Christie’ Executive Orders # 2 and #3 and Red Tape Review Commission.

With respect to regulations and the economy, President Obama drank the same Chamber of Commerce Kool-Aid as Governor Christie.

That commonality between a so-called “liberal” Democrat and a conservative Republican reveals how dominant corporate interests are over the public interest. 

The fact that critical life and death decisions and the health of the planet can be determined based on flawed economics in corporate dominated back room deals should outrage all Americans.

Let’s hope Sunstein’s departure can shed some light on and engage dialogue on those issues.

Will DEP Commissioner Martin listen and abandon his fatally flawed plan?

[Update: 8/6/12 – “Mark in the Morning” column gets word out on Bull’s Island, see: N.J. full of natural resources, history that are worth preserving – end update]

Since we last posted on this issue, we are pleased to report that strong public opposition is growing to the DEP’s plans to clearcut 6 acres of magnificent 200 year old trees on the northern portion of Bull’s Island.

Among governing bodies, Delaware Township just joined Alexandrian Township, and the Delaware River Wild & Scenic Management Committee (and perhaps others) in opposition to the DEP plan.

US Fish and Wildlife Service and the US Army Corps of Engineers have also weighed in with regulatory oversight and enforcement actions in response to DEP’s actions on the Island.

The Delaware River advocacy community, led by Delaware Riverkeeper Network; the regional conservation community; NJ Audubon, NJ Sierra Club, and professional forestry community are joining the battle.

Here’s a flavor of their opposition.

Emile Devito, PhD, Manager of Science and Stewardship at NJ Conservation Foundation recently wrote DEP Commisioner Martin to oppose the clearcut plan and to warn DEP that their restoration approach is doomed to failure. Devito’s letter concluded:

Town “Tired of Living In An Environmental Nightmare”

Seth Augustine at the Star Ledger wrote a very interesting story yesterday on the cleanup of a toxic site in Carteret, see:

Taking its environmental fate in its own hands, Carteret plans to sue to clean up U.S. Metals site

CARTERET — Tired of living in an “environmental nightmare,” Carteret is taking the initiative in forcing the clean-up of a former metal refinery site, the mayor said today.

The borough has given notice that it plans to sue, if necessary, to force a cleanup of the former U.S. Metals site off Middlesex Avenue, said Mayor Daniel Reiman. Though much of the site has been vacant since the 1980s, the mayor said it still bears the contamination from more than a half-century of copper and lead refining.

“This is not something typically a municipality does,” Reiman agreed. “But we can no longer sit idly by while environmental agencies twiddle their thumbs.”

[Note: read Mayor’s statement – no lawsuit filed yet.]

Obviously, the story raises interesting legal issues of statewide concern, but I’m more interested right now in the idea that local government must act because State and federal regulators have abdicated their responsibility and, as Mayor  Reiman says, are “twiddling their thumbs”.

Coincidentally, the cleanup of the Carteret US Metals site was governed by a 24 year old (failed) NJ DEP Adminsitrative Consent Order (ACO).

Carteret echoes DEP failures across the state, most recently visible in the Garfield chromium nightmare.

So too was the Dupont toxic nightmare in Pompton Lakes under a 1988 DEP ACO.

There’s more “consent” to polluters than “order” to clean it up in those DEP ACO’s.

But, in contrast to Carteret’s leadership in trying to escape from an “environmental nightmare”, the Mayor and Council in Pompton Lakes have consistently supported Dupont, the polluter, and failed to take any action to protect residents.

Carteret’s local government action becomes even more interesting in light of the privatization of NJ’s toxic site cleanup program.

That privatization put “mercenaries” in total control of the cleanup process and essentially eliminated the consultative role of municipal governments, as well as any meaningful community involvement in critical cleanup decisions.

Those private decisions significantly impact their health, property values, and the economic redevelopment potential of the town.

Let’s hope this story gets legs in the media and that more NJ Towns take their own environmental fate into their hands.

Then maybe the regulators will get off their asses and stop twiddling their thumbs and enforce the environmental laws.

But, I am under know illusion that this will happen under the “customer friendly” Christie Administration’s DEP.

In fact, the Christie policy is aptly characterized by Mayor Reisman: thumb twiddling!