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 Confessions of A Planner and Environmental Regulator

This post begins my low brow, lame, and poorly written attempt at a series version of “The Education of Henry Adams”, a classic of ideals and principles dashed by industrial power (The Dynamo) and emerging political chaos.

I enjoyed that book many years ago in college history, but am just now beginning to realize the meaning of it from a personal perspective.

But my style and outlook may be closer to the more recent classic:  “Confessions of an Economic Hit Man” by John Perkins.

So let me begin today and start to set the context not by any logic or chronology, but by sharing one true story that illustrates fundamental problems.

When I returned to DEP in 2002 at the invitation of Brad Campbell (nominated by Gov. McGreevey, but not yet confirmed as DEP Commissioner), one of my key projects was the “Category One Waters” (C1) initiative.

The idea for the C1 initiative originated in former DAG Tom Borden’s work in Clinton Township opposing the Windy Acres development project. Borden had petitioned the Whitman DEP for a regulatory reclassification of the South Branch of Rockaway Creek (SBRC) as a C1 water. Then DEP Commissioner Shinn denied that petition for rule making.

During the McGreevey Administration transition process, environmental groups convinced the Gov.’s Office and Campbell to grant that Borden SBRC petition and to promulgate new regulations to expand the C1 designation process statewide, as authorized by the criteria of current C1 regulations.

Historically, DEP had limited the C1 designation to trout production waters, despite the fact that the existing regulations allowed DEP to consider a broad range of factors, including exceptional ecological significance, exceptional recreational significance, exceptional water supply significance or exceptional fisheries resource(s) to protect their aesthetic value (color, clarity, scenic setting) and ecological integrity (habitat, water quality and biological functions).

There were also two virtually unknown C1 designation criteria related to the lands drained by the surface water:

1. Waters originating wholly within Federal, interstate, State, county, or municipal parks, forests, fish and wildlife lands, and other special holdings that have not been designated as FW1 at N.J.A.C. 7:9B-1.15(h) Table 6;
2. [.. ]
3. [..]
4. [..]
5. Other waters and their tributaries that flow through, or border, Federal, State, county, or municipal parks, forests, fish and wildlife lands, and other special holdings.

Historically, C1 waters were not protected by 300 foot wide vegetated buffers – that buffer amounts to 72.7 acres per stream mile! (600 ft) x (5280 ft/mile)/43,560 sq. feet/acre = 72.7  acres)

Historically, the land use impacts of the trout based C1 designation were site specific and narrow, mostly from triggering exceptional wetlands value classification and 150 foot wetlands buffers.

But C1 designations had huge potential for significant regional land use impacts because the “no measurable change in existing water quality” antidegredation standard made it very difficult and costly, if not impossible, for the DEP to approve a sewage treatment plants to discharge to a C1 stream. Large developments in rural areas or located outside existing sewer service areas required these package sewage treatment plants, often called COWS, for Community Onsite Wastewater Systems.

As Sierra Club policy Director, I was one of the leaders of environmental groups who had participated in the McGreevey transition process and recommended the expanded C1 initiative.

When I returned to DEP in early 2002, I was given the Commissioner’s support and free rein to establish a Department-wide working group to design and flesh out the C1 initiative.

DEP programs and staff were generally supportive of the initiative, but, surprisingly, I ran into some unexpected roadblocks. I got strong resistance – even flat out opposition – from two groups in DEP: 1) the Bureau of Freshwater Fisheries (BFF); and 2) The Green Acres Program.

I scratched my head: why would DEP units that protected fisheries and land be opposed to a program that would protect water quality and prevent the development of land?

The BFF historically had been the technical lead in C1 designations. They conducted stream studies to document the presence of reproducing trout and then those studies became the basis for C1 regulatory designations by the DEP Bureau of Water Quality Standards. The process typically took 3-4 years or more, and not all BFF recommendations were ultimately implemented through C1 designations, which require rule making.

But BFF was concerned about more than bureaucratic turf – their mission, I was surprised to learn was less about protecting freshwater fish than responding to fishermen, more specifically trout fishermen.

BFF viewed an expanded beyond trout based C1 program as a competitor for resources that would reduce the priority of or slow down trout waters designations.

It took me awhile to convince them that this concern was misplaced, and in fact the expanded C1 would enhance trout protections. They ultimately joined in supporting the program.

But Green Acres was another story entirely.

In working group meetings, they simply refused to cooperate.

I met one on one and explained that the criteria for designations included green acres properties.

So I asked them for maps (GIS data layers) of their lands with the stream network data layers to target C1 candidates.

I asked them for land acquisitions in the pipeline so we could integrate C1 designations, land use planning, and land acquisition.

They stonewalled and refused to provide the data.

They never even told me why, instead they went behind my back through their management chain to make their private case to Campbell.

But a Green Acres staffer explained the reasons to me thusly:

1. Green Acres needs to maintain good relationships with land owners.

2. Land owners HATE environmental regulations.

3. Green Acres often must negotiate development deals with land acquisitions. Typically, these developments are nearby the acquired lands.

4. If landowners thought that a Green Acres acquisition would trigger a C1 designation that would limit their development potential – and the appraised value of their land – many landowners would never approach the Green Acres program.

I found it outrageous that those policies and views were allowed to prevail and to shrink the DEP’s C1 planning.

• So, lesson learned?

Those that acquire land HATE land use planning and regulation of land use. It is too coercive and undermines their voluntary private property & market based driven corporate ideology and entire conservation framework.

They HATE transparency and public scrutiny, they prefer private deals. Landowners and corporations prefer the back room to the public hearing room. It might upset their money expectations or their political negotiations.

They DON’T CARE about the Big Picture, Science, or Planning – they prefer site specific deals.

They are GREEDY and SELFISH  and NARROW, ensconced in a BUBBLE OF PRIVATE INTERESTS, and could care less about THE PUBLIC INTEREST.

For self interested reasons that have nothing to do with environmental protection or the public interest, those that acquire land will do their best to undermine regulation, despite the fact that planning based land use regulation is a far more cost effective and environmentally sound approach – across an entire region – than the non-strategic piecemeal acquisition of single parcels that they call the Green Acres program.

Story told.

So, meet the dynamics now at play in the Keep It Green Coalition.

(Part II – What Ever Became of C1? And what’s the CBT got to do with it? – coming soon)