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DEP Failed To Consult with Ecologists and Follow DEP’s Own Review Process

Clearcut plan an affront to 40 years of NJ’s leadership in landscape ecology

The DEP press Office just can’t seem to stop lying and attacking critics of their harebrained scheme to clear-cut magnificent mature riverfront forest at Bull’s Island State Park (for details and documents, see:

• NEW JERSEY DECLARES STEALTH WAR ON “KILLER TREES“
• NEW JERSEY WAR ON “KILLER TREES” VIOLATES FEDERAL LAW

The latest DEP PR offensive grows out of press coverage of last Wednesday’s (August 15)  regular meeting of the Delaware and Raritan Canal Commission (DRCC). Because it is so egregious, we will have to spend some time here today providing documentation. So bear with me on this lengthy post, please, before you hit the delete button.

Let me first give a quick rundown of what went down at that 8/15 DRCC meeting and talk briefly about a wonderful interpretive walk in the southern Natural Area of Bull’s Island conducted by Emile Devito, PhD of NJCF immediately after the meeting (see above photo).

Then I will expose the most recent round of DEP lies and completely over the top spin in today’s story in the Lehigh Valley Express: Delaware and Raritan Canal Commission asked to deny Bull’s Island plan

I)  DRCC Meeting

The NJCF issued an alert to warn their members that the DEP would present the clearcut plan at the August 15 DRCC meeting. But for some reason, perhaps to avoid public criticism, after that alert was issued, the DEP apparently chose not to do so, see: Bull’s Island forest removal application postponed

So only a handful of concerned citizens and the leaders of environmental groups opposing the clearcut attended the August 15 hearing.

Because DEP’s Bull’s Island clearcut proposal was not on the Agenda, the issue had to wait until the various monthly reports were provided at the end of the hearing. But, in an unfortunate pattern, again, the DRCC Executive Director, the DEP D&R Canal State Park Superintendent, and the representative of the NJ Waters Supply Authority all were mum and had nothing to report on Bull’s Island.

The public comment period provided the only opportunity to make inquiries and talk about what is going on at Bull’s Island. As I’ve noted previously, this is because DEP lacks a public planning process for managing State Parks and State Lands – given this deficit, the Legislature should enact a law to mandate a public process before a project of this magnitude could occur in a State park or other public lands.

Several in attendance rose to speak about DEP’s proposed clearcut plan.

Jeff Tittel of Sierra Club reminded the Commissioners that Governor Christie tried to abolish the Commission, a move that drew strong public opposition and was blocked – on a bi-partisan basis – by the Legislature.

Tittel noted the outstanding natural resource and parks values and strong public interest in what was going on. He urged the Commission to ignore DEP’s rejection of their prior request to present a plan and instead hold a public hearing to solicit input from all interested parties.

I then was recognized to speak. I first took exception to the minutes of the May 22 meeting  – I was on the Tour De Frack and unable to attend that meeting, yet my concerns were criticized in my absence by Commissioner Loos.

I had noted and criticized the Executive Director’s failure to report about various very important correspondence to the Commission, including: 1) a municipal Resolution by Alexandria opposing the DEP clearcut plan; 2) a Cease and Desist Order issued by the US Army Corps of Engineers to NJWSA and DEP Parks; 3) an Enforcement action by the Hunterdon County Soil Conservation District; and 4) the conduct of numerous site inspections and important meetings on Bull’s Island with federal, state and local regulatory agencies.

The public must be informed of this kind of information, particularly given the huge controversy and DEP’s failure to present any information on their controversial clearcut plans.

I suggested that to fix this transparency problem, that a correspondence and meeting log  be included in all monthly reports by the Executive Director.

I then advised the Commission of other important matters that I recently learned about in reading a trove of documents provided to me by the US Army Corps of Engineers (USACE) in response to my FOIA request.

None of these important issues war disclosed to the public or the Commissioners in the relevant monthly reports, including:

1) NJWSA is having significant permit and compliance problems with the USACE regarding their canal dredging and maintenance practices. This is beyond the scope of this note but needs to be looked into.

The USACE concerns are directly related and critical to the DRCC review not only for clean water issues, but because the Island’s trees protect from flooding and erosion and provide structural stability for the D&R Canal.

The Canal provides 100 million gallons per day of water suppy to 600,000 residents of central NJ – if the Island is clearcut, the mouth of the canal could be washed away or the necessary passing flow could be blocked by sediment.

That’s why the DRCC regulations require the protection of the structural integrity of the Canal and that the Commission act to preserve its function as a water supply source.

2) the USACE issued a Cease and Desist Order on May 23, 2012 to the NJWSA and the DEP Parks for: a) violations of the Clean Water Act for illegal destruction and fill along a 400 foot long stretch of the Wild and Scenic Delaware River and b) permit violations for D&R canal dredging, including an expired permit; violations of seasonal restrictions on dredge operations designed to protect rare and threatened/endangered species; and illegal disposal of dredge along the riverfront fill.

3) The USACE flagged fisheries management issues that have not yet been mentioned;

4) The USACE noted that both DEP and NJWSA officials made false statements regarding the illegal disposal of dredge material along the river.  I emphasized that is was totally unacceptable for public agencies to lie to another public agency.

I warned the Commission that failure to report publicly on these issues not only keeps the Commission and the public in the dark but – to me – this pattern of conduct severely undermines the credibility of DEP.

Commissioner John Loos interjected that he was told that DEP will be posting a public survey on their website, asking the public what they would like to see done with Bull’s Island.

I then suggested that perhaps this could be the face saving move the DEP Commissioner needs – when public opinion come in 95% opposing his clearcut plan he can abandon it and say he listened to the public!

Last up to speak was Emile Devito, PhD, Director of Science and Stewardship at NJCF.

Emile was reserved but scathingly critical of the DEP clearcut plan, calling it a “travesty” that lacked any basis in science.

Emile stated that the DEP clearcut plan was not reviewed by internal DEP or external scientific experts and did not consult with formal DEP advisory bodies as required by a longstanding DEP policy.

Under longstanding DEP policy, DEP consults with the Endangered Nongame Species Advisory Council and the NJ Natural lands Trust  regarding the management of state lands and state parks. Devito said this review process is triggered by even minor actions, like building a kiosk on preserved lands.

As a professional, Devito has participated in these review processes for several years.

Devito warned that the DEP’s cleat plan was a “travesty”, has strong opposition in the conservation science community  and is becoming one of the most controversial DEP State lands proposals ever. Here’s how Emile’s concerns were reported:

Emile DeVito, of the New Jersey Conservation Foundation, said the DEP is not following its process.

“This is supposed to be an internal and thorough process,” he said. “That process has not been followed.”

DeVito claims the island is the only place in the eastern part of the country where two rare bird species make their home. He’s also concerned about erosion and invasive plant species that could occur before new plantings take hold.

“No restoration could possibly happen there,” DeVito said. “I urge you all to educate yourselves on the ecology of Bulls Island.”

By way of background, here is his letter to DEP opposing the clearcut.

Emile also is a member of DEP’s Endangered and Nongame Species Advisory Committee :

The Endangered and Nongame Species Advisory Committee was established in 1974 under the New Jersey Endangered and Nongame Species Conservation Act (N.J.S.A. 23:2A-7e). The committee is appointed by the Commissioner of the Department of Environmental Protection and serves as an advisory body to that office in matters of New Jersey endangered and nongame wildlife resource. The original group consisted of five citizens with professional interest in nongame wildlife.

The Endangered and Nongame Species Program staff present Program research agenda, policies, and controversial topics to the Committee for advice on appropriate handling. The Committee formally recommends status listing changes to the State nongame wildlife list biennially. In addition, Committee members often open and pursue issues of importance and recommend action to the Program and Division. The viewpoint of the committee members based on their personal experience and interest is of great value to the Program, Division and Department. The Committee’s formal recommendations become an integral part of the State’s development of policy and making of decisions, however, the role is advisory only. There is no legal obligation for the Department to adopt the Committee’s recommendations. An excellent working relationship between the Program, Division, Department and the Endangered and Nongame Species Advisory Committee has developed over the years, and policies often reflect the ideas generated at committee meetings. 

Emile also is on the Board of Trustees of the NJ Natural Lands Trust:

The New Jersey Natural Lands Trust was created in 1968 by the Legislature as an independent agency in but not of the Division of Parks & Forestry in the New Jersey Department of Environmental Protection (DEP). Its mission: to preserve land in its natural state for enjoyment by the public and to protect natural diversity through the acquisition of open space…

The Trust manages its properties to conserve rare plant and animal species habitat and rare ecological communities. The Trust invites passive use by the public for recreational or educational purposes wherever such use will not adversely affect biological diversity. Currently, the Trust is responsible for over 26,000 acres of open space, including over 2,500 acres of conservation easements.

Remember all this when we get to the quotes and spin by the DEP Press Office that this is all only about only a “few critics” who are “looking for confrontation”. 

[Note: Dave Moore, one of NJ’s most well known conservationists –  hardly a bomb thrower, having rubbed elbows at a recent black tie event with Governor Christie and other luminaries – wrote a scathingly critical letter opposing the DEP plan.

Dave agreed with me on the risks of erosion to the mouth of the D&R Canal. Dave also recommended preservation as a Natural Area:

” … there is an opportunity for the forest understory to naturally regenerate if left alone, it is appropriate to include the northern portion of the island in the natural area designation. Removal of the existing specimen forest would set back a return to natural conditions for a century or more. There is nothing to gain by the proposed logging proposal, and a lot to lose.” –

How can DEP press Office spin that? end note]

II)  Interpretive Walk at Bull’s Island Natural Area

After the DRCC meeting, Devito conducted an interpretive tour of the Natural Area in the southern portion of Bull’s Island.

He turned the Island into an outdoor classroom, and showed the group a sycamore and silver maple dominated forest approaching old growth characteristics (carefully distinguishing old growth characteristics from ancient forest). He noted how that mature forest and closed canopy provides shade that limits invasive species and provides rare bird habitat.

Emile spoke passionately about forest and plant ecology, the role of regular river flooding, and why there are deciduous trees in this climate. He explained the evolutionary adaptation of sycamore’s in riverfront environments. He illustrated this process by explaining how sycamores and vines survive regular flooding and how they relate to each other.

Devito showed the group examples of the how the Bull’s Island forest was a wonderful example to show the migration of species of trees from the Mississippi river valley – and especially noted the presence of a scientifically rare sub-species – the yellow throated or sycamore warbler.

Devito decried the DEP clearcut plan as an ignorant affront to 40 years of NJ’s leadership in landscape ecology.

III)  DEP Press Office Can’t Stop Lying and Attacking Critics 

I’ve previously written at length to explain DEP lies (see: DEP Statements on Bull’s Island Are Flat Out False)

But since then, I had fun discovering vindication in my USACE FOIA document trove: 1) a Cease and Desist Order, 2) several revealing memo’s and field reports, and 3) a USACE press release that basically thanks me and NJ PEER for bringing the matter to their attention.

For blowing the whistle with the USACE, the DEP press office called me “completely ridiculous and irresponsible“. The USACE May 14, 2012 press release stated:

The US Army Corps of Engineers announced today the successful restoration of a section of riverbank at the Bull’s Island recreation are in Huntedon County, New Jersey

The Army Corps’ Philadelphia District directed the restoration in response to a complaint filed in late March by Bill Wolfe, director of the Public Employees for Environmental Responsibility. (sic) Wolfe complained that the Delaware and Raritan Canal was being dredged and sediment and debris was being bulldozed into the Delaware River.

So take that Larry Rangonese! You’re the one who is “completely ridiculous and irresponsible”.

But instead of backing off and flying right in light of the facts, DEP is doubling down on the secrecy, lies, and misinformation.

Here’ some of the most recent examples from the Lehigh Valley Express story:

1) Lie #1 – DEP denies clearcut

“We’re not clear-cutting sycamore trees,” Ragonese said a day after opponents urged commissioners to deny the plan.

Larry is technically correct – DEP is NOT clear cutting just sycamore trees – they are clear cutting ALL trees and going even beyond that: DEP is “removing all vegetative material”.

Here’s the clearcut plan, in DEP’s own words: (I have many other DEP documents and emails that refer to the plan as a “clearcut”)

(please read the entire DEP memo and see how it says DEP is “proceeding” and never once mentions any prior ecological scientific review or legally required DRCC review or DEP permits. In contrast, however, note how economics and the logistics of forest logging ARE considered. Last, look how DEP arrogantly states that simply notifying the public AFTER the fact on its website is all they need to do – no public involvement at all! ):

Actions:

Based on the consultant report and technical review by DEP forestry experts, we are proceeding with removing all vegetative material in the upper section of Bull’s Island.

Once the area is cleared, the Department will proceed with replanting the area with appropriate floodplain vegetation that matures at smaller heights and does not pose a public safety risk; […]

Field foresters from the northern region have made a preliminary vist to the site to assess the value of the wood and the site conditions. They are actively identifying all merchantable trees in the upper river capsize area and creating an inventory list in preparation of the bid.

2) Lie #2 – DEP Denies Attempts to Defend a Bad Decision and Save Face

“Why would we want to take down 150-year-old trees that we love? There is no gain in it for us,” Ragonese said, adding there are other sycamores nearby.

First of all, DEP does not “love” sycamore’s, or they would not be proposing to clearcut them

Second, aside from small logging revenues and furtherance of a plan to increase concessions at State Parks, at this pint the primary “gain” for DEP is avoiding further harm to reputation and credibility.

In a classic bureaucratic move, they simply are in a hole and continue to dig deeper.

The press Office continues to defend a DEP Commissioner made a very bad knee jerk reaction by DEP Commssioner Martin (and I have emaisl that show Martin’s clearcut decision was made at least a week BEFORE thee DEP consultant’s report was submitted on July 15, 2011.)

3. Lie #3 – DEP refuses to unequivocally commit to DRCC review

Ragonese wouldn’t say specifically when a plan would come before the commission, but he did say that the DEP hopes to begin replanting in the spring.

DRCC Executive Director Dooley has stated that DEP has assured her that DEP will seek DRCC approval before trees are cut.

But note how Rangonese refuses to unequivocally commit to that review, merely saying DEP hopes to begin replanting in the spring (meaning trees will be cut down before then).

4. Lie #4 – DEP falsely claims a reforestation plan is “in place”

“We actually have a reforestation plan in place,” Ragonese said.

When a regulatory bureaucracy says something is “in place” that means adopted, approved, done ,final, finished, good to go.

But oops, the reporter clearly was skeptical of Rangonese’s spin, because he reported the facts that the reforestation pal is NOT “in place”:

The reforestation plan, however, hasn’t been finalized, he said.

5. Lie #5 – DEP whitewashes history , ignores  attempt to abolish Commission

Ragonese said there will be a collaborative effort with the Delaware and Raritan Canal Commission.

“We’ll work with them,” he said. “We’re not at odds here either.”

Could Larry have forgotten that the Governor and DEP Commissioner sought to abolish the DRCC?

That the DEP’s own clearcut plan documents show that they totally IGNORED the DRCC?

That Gov. Christie has failed to make appointments to the DRCC, risking lack of a quorum?

That DEP Commissioner Martin has blocked and dragged his feet in approving staff to the Commissison, despite the Legislature having budgeted these funds?

All of this shows a pattern of bad faith on DEP’s part.

6. Lie #6 – DEP attacks critics

“A couple of critics have gone out of the way to hammer the DEP,” Ragonese said. […]

“This is not a confrontational issue except by those looking for a confrontation,” Ragonese added.

We’ll keep you posted on next moves.

Media coverage is increasing and public opposition is clearly growing.

Parks, Conservation, and environmental groups who have already written DEP to oppose the clearcut: 1) NJ Audubon Society, 2) NJ Conservation Foundation, 3) Delaware Riverkeeper, 4) Sierra Club, 5) NJ PEER, and 6) several local D&R Canal Watch supporters and watershed groups.

On the regulatory front, in addition to the DRCC review and approval, 1) the US Fish and Wildlife Service, 2) the National Parks Service, 3) the EPA, 4) the US Army Corps of Engineers, 5) the Delaware River Basin Commission; 6) The Delaware River Wild & Scenic management Committee; and 7) the Hunterdon County Soil Conservation District all have review jurisdiction, all have weighed in already, and all are all looking closely.

It is important that any DEP website survey get a large public response opposing the clearcut plan and that we get good public turnout for the DRCC review process.