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CAFRA Died Long Ago – Bay a Funeral For Coastal Land Use Planning 

Reaping the Results of Builders Gone Wild

With the proliferation of scientific reports and scathingly critical media editorials on the impending death of Barnegat Bay competing with the proliferation of algae and jellyfish, it’s time to step back and begin to take stock of just what went wrong.

A comment from my friend Bill Neil (a must read, see below) reminds me that I tend to get bogged down in the regulatory weeds, and often fail here to tell the story with a broader brush.

Simply put, the Death of Barnegat Bay is an illustration of the greed and political power of the development lobby – builders, banks, realtors, landowners, business groups, etc – and the total failure of land use planning and environmental regulation at the State level under the “Coastal Area Facility Review Act” (CAFRA).

[This is the process Chris Hedges calls “the Leviathan of unregulated capitalism” – citing Marx and Polanyi on capitalism as a “revolutionary force” that commodifies people and the natural world and exploits them until exhaustion or collapse.]

The CAFRA law was enacted in 1973 – here are its objectives:

The CAFRA law set up a regional planning and DEP development permit program – DEP was empowered to prepare a comprehensive plan for land use in the coastal zone and consider the cumulative impacts of development.

Ecological based planning and water resource protection were cornerstones of CAFRA.

Section 19 of CAFRA [Correction: Section 10 – h/t Helen Henderson] specifically directed DEP to make positive findings or else deny a CAFRA permit to enable DEP to assure that any project:

a. Conforms with all applicable air, water and radiation emission and effluent standards and all applicable water quality criteria and air quality standards.

b. Prevents air emissions and water effluents in excess of the existing dilution, assimilative, and recovery capacities of the air and water environments at the site and within the surrounding region.

[Note: this explains why there are no TMDL (numeric water pollution limit) or DEP water quality standards for nutrients – if there were, DEP would be required by law to deny development permits that did not meet them and the public could enforce those standards via lawsuits if/when DEP failed to do so. ]

d. Would result in minimal feasible impairment of the regenerative capacity of water aquifers or other ground or surface water supplies.

[Note: this is why there are no DEP cumulative limits on groundwater withdrawal, which has allowed unsustainable mining of groundwater, depletion of stream base flows, loss of 30% freshwater inputs into the Bay, and salt water intrusion to happen.]

And check out this broad power to DEP to deny CAFRA permits

Notwithstanding the applicant’s compliance with the criteria listed in section 10 of P.L.1973, c.185 (C.13:19-10), if the commissioner finds that the proposed development would violate or tend to violate the purpose and intent of this act as specified in section 2 of P.L.1973, c.185 (C.13:19-2), or that the proposed development would materially contribute to an already serious and unacceptable level of environmental degradation or resource exhaustion, the commissioner may deny the permit application, or the commissioner may issue a permit subject to such conditions as the commissioner finds reasonably necessary to promote the public health, safety and welfare, to protect public and private property, wildlife and marine fisheries, and to preserve, protect and enhance the natural environment.

The “”tend to violate” provision is precautionary and shifts the burden in DEP’s favor. There is no legal need to wait until proof positive causal science is complete (as DEP has consistently done and is still doing with Bay science).

The “already serious unacceptable” provision is supposed to have been DEP’s basis for “cumulative impact” standards – DEP never adopted regulations to implement that.

DEP never had the political will or leadership to develop a regional plan, regulations, or enforce a permit scheme to implement the standards in CAFRA law.

DEP rarely – if ever – denied CAFRA permits or enforced permit violations.

As a result, we see impairment of water resources – do those (above) 1973 CAFRA standard sound familiar right now?

The Bay is proof positive and a result of the fact that DEP never implemented the  “framework of a comprehensive environmental design strategy”  called for in the CAFRA statute or a regional plan for the coastal zone.

On the regulatory side of the ledger, DEP never developed a methodology to measure or regulate the cumulative impacts of individual developments (AKA “death by a thousand cuts”).

After almost 40 years since its passage, sadly, the CAFRA program has devolved into a site specific permit program.

Now, under the Christie Administration, even that permit program is being rolled back.

For a cogent analysis of what went wrong, here are my friend Bill’s Neil’s thoughts – with which I concur:

Bill:

Since I began my environmental career at the American Littoral Society under Dery Bennett, and continued to work on coastal issues, especially the “strengthening” of the coastal law – CAFRA – and trying to get regulatory teeth in the State Plan, with a great deal of resistance from Republican conservationists on the merits of a State Plan with consequences, I feel obligated to add a few comments.

1. Everyone could see this coming and a good deal of the blame should be placed on the power of the NJ Builders and the real estate industry, who exert power all over the state but especially in the coastal areas, where the development process is “supercharged.”

2. I knew it was a losing battle to try to protect coastal water quality in the most threatened areas – like Barnegat Bay – under a CAFRA law that was indifferent to the volume and density of suburban development. And we were unable to win stronger protections via that law, despite many repeat performances, the last one I recall was under Governor Whitman, whose staffers were saying their proposals would do the job.

3. It is very tough to clean up the pollution that is a direct by-product of “the way people live” after the suburban development is in place. I understand that Willie de Camp had a hell of a tough time getting even a moderate fertilizer-reduction bill passed.

4. The results demonstrate the truth that economic development and environmental protection are not always compatible – certainly not under the terms which took place surrounding Barnegat Bay.

5. The power of the building and real estate industry is truly awesome when deployed inside the corridors of power at the state house and the party fundraising mechanisms, and the NJ Builders did a good job saying environemntalists like me were blocking the American Dream of home ownership via regulatory plans. But they never owned up to the costs of ruined resources, and one might ponder, given the state of the Bay, to the property values going down as the once former “amenity” decays.

6. I’ve come to see the power of local governments to create financial value via their zoning authority as literally the creation of money; next to the Federal Reserve’s powers, they have the second greatest ability to create money from land and natural resources by increasing density or allowing building in the first place. It is not the sole reason, but a strong contributor the historically high levels of corrpution between local and county officials and the private economic actors who seek their favors and the magic of money by zoning.

7. I don’t know if it is possible to clean up this Bay; under a Green New Deal that was willing to spend domestically what we now spend (spent) on building the 900 plus military bases in Iraq and Afghanistan – it might be. But under current Republican Right philosophy humans apparently can’t do nature any harm, and even if they took the giant step in admitting the damage, ongoing and past cumulative, they have the added ideological burdens of being anti-gov’t, anti-spending and anti-regulatory – which ought to lead every environmentally friendly citizen too take a good hard look at any conservationist claiming to be a good Republican and a good conservationist: I say it is impossible intellectually unless you believe ideas can be twisted like pretzels and still retain their meanings.

I’ll conclude with the observation, confirming just how hard the clean-up will be – and the costs, by mentioning the largest storm-water proposal I ever came across. It was the one by the city of Providence Rhode Island, in order to protect Narragansett Bay – to build a giant underground stormwater storage facility to retain the stormwater and avoid jointly sending it at the same time to treatment plants – which then would be overwhelmed with their normal sewage treatment duties plus all that run off. It made sense, but was quite expensive. It was the boldest idea/project in the nation in the early years of the 2000′s – but I don’t know if it every came off. Of course it now runs against the grain of the new stormwater treatment trends: to retain and infiltrate all the stormwater right on existing sites: which is not cheap or easy either when one multiplies the number of sites times the cost.

My final comment is this: to all the legislators and regulators who heard me speak or read my written testimony and gave me that “we’re realists, you’re dreaming” look, which included the unspoken thought that I was exaggerating the pending damage or costs to continued physical development in the wrong locations, I now urge you to ponder your complicity in the results. F. Scot Fitzgerald was right in the closing pages of “The Great Gatsby”: the green light for full speed ahead always is shining at the end of the dock, and it continually blinds us to the costs and consequences of running that light, even after it has gone from yellow to red. But I doubt that Governor Christie will be quoting from the Great Gatsby in his forthcoming speech.

 [Note: this post was revised]