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Our Recommendations On Open Space Funding

State Parks Capital and Operating Funds Must Be Fully Restored

Climate Change and Long Neglected Urban Needs Must Be Addressed

With Less Money & Greater Public Needs, Cost Controls and Planning Reforms Are Required

During the December 8, 2014 hearing of the Senate Environment Committee, Chairman Smith asked for public comments on implementation legislation for the new Open Space funds approved by the voters in November. For a flavor of that debate, see Star Ledger story:

.Below are our recommendations – we strongly urge those who agree to write to Chairman Smith and Assembly Chairwoman Spencer by the December 31, 2014 comment deadline: (email addresses: senbsmith@njleg.org; aswspencer@njleg.org)

December 21, 2014

Dear Chairman Smith and Chairwoman Spencer:

In accordance with Chairman Smith’s request during the Senate Environment Committee’s December 8, 2014 hearing on open space implementation legislation, below  please find my recommendations.

At the outset, it is important to note that I make fund allocation and policy recommendations.

The precedent I rely on for the policy recommendations, as I indicated during my testimony, is the implementation legislation for a portion of the original 1996 CBT dedication, the 1997 Watershed Management Act (Act), P.L. 1997, c. 261.

In the Act, the Legislature found: (emphases mine)

The Legislature further finds and declares that the Fiscal Year 1997 funding levels must be increased in future years to enable the department to meet the requirements of the federal Clean Water Act; and that the constitutionally dedicated and appropriated additional monies, when used to fund a watershed-based approach to water resource management and pollution control, will greatly assist the State in protecting waters that meet water quality standards and in attaining and complying with federal water quality standards.

The Legislature therefore determines that it is in the public interest and consistent with the intent of Article VIII, Section II, paragraph 6, subparagraph (a) of the New Jersey Constitution to provide statutory guidance to the department for the use of the dedicated monies; that the dedicated monies should be used to support an expansion of department efforts in the area of water resource management; and that the State should adopt a watershed-based approach to most effectively and efficiently comply with federal guidelines. 

First of all, these 1997 legislative findings have huge continuing relevance today in the following regard:

1) the Legislature noted that funding levels at DEP had been cut and “must be increased in future years”.

2) the objective of additional funding was specifically tied to compliance with regulatory requirements.

3) the funds were intended to expand existing DEP efforts.

Second, substantively, the Act boldly created an entirely new policy and watershed based planning program at DEP. The watershed planning process was designed to be transparent, open, and participatory, including specific requirements for public participation.

Third, the Act specified detailed purposes and allowable uses of funds. Those purposes were substantively integrated with regulatory requirements (see Section 5).

Fourth, Section 6 of the Act set fund matching requirements and strict prohibitions on the use of funds for the benefit of regulated entities and regulatory purposes:

(2) A watershed management group may, pursuant to guidance provided or rules or regulations adopted by the department, distribute all or part of the loan or grant to another person who is to perform a watershed management activity for which the loan or grant was provided. If the watershed management group distributes the loan or grant to a person who has a NJPDES permit to discharge pollutants into the waters of the State pursuant to P.L.1977, c.74 (C.58:10A-1 et seq.), the distribution shall be conditioned upon the permittee providing a match of one dollar for every dollar provided by the loan or grant. The match may be made either as a monetary payment or as an in-kind contribution. Any person who has a NJPDES permit and who accepts a loan or grant pursuant to this subsection shall agree not to use any of the loan or grant monies for the purpose of complying with NJPDES permit requirements. 

  • Policy and fund allocation recommendations

With these 1997 precedents in mind, I make the following policy recommendations for open space funding implementation legislation:

1. Fully Restore Parks Capital and Operating funds

Of the initial year $71 million, $32 million must be allocated to State Parks. The entire State Parks capital dedication should be restored legislatively.

Additionally, because lease and concession revenues have been dedicated, we understand that State Parks will suffer a loss of an additional $3.8 million in operating funds, with Liberty State Park particularly hard hit. The full $3.8 million potentially diverted must be restored.

This full restoration is consistent with the terms of Ballot Question #2. The full restoration is authorized pursuant to the provisions of SCR84 (SCS). Full restoration is consistent with public statements of the Keep It Green Coalition.

Specifically, when critics warned that State Parks capital funding was effectively being diverted, KIG responded that parks funding “was in there” as an allowable use of open space funds.

Accordingly, there was no legislative intent and no voter awareness or support for reducing State Parks capital or operating funding. See:

2. Fund neglected and new unmet urban needs

Like the 1997 Act, the legislation must respond boldly to new needs, and address long neglected needs, as follows:

Of the $32 million restored State parks money, at least 1/2 should be allocated to the following unmet and neglected urban needs.

a) Urban parks, Community Gardens, Farmers Markets, and Food Desert programs – “Jersey Fresh 2.0″

The Legislation should allocate those urban parks funds on the basis of a formula that looks at needs: i.e. there are indicators, such as open space and parks per capita or per land area, in each NJ town.

This GIS based formula could also include a location and distance component, e.g. children and elderly should not have to travel more than 1/2 mile to access a park or open space.

Similarly, a significant portion of the farmland preservation funds should be linked to programs that benefit urban residents, including farmers markets and community gardens. The USDA and Rutgers have done good work to map “food deserts”, communities that lack access to fresh fruits and vegetables.

Just like the unmet parks and open space needs, these “food desert” communities could be targeted by a GIS based formula built into the implementation legislation.

b)  Urban Forestry 

Climate change will result in a significant increase in 90+ – 100+ degree days during summer heat waves, see:

Hotter days increase unhealthy ground level ozone that triggers asthma attacks and respiratory distress. Heat waves also cause increases in mortality, particularly in elderly populations. Urban areas suffer extreme “heat island” effects due to all the pavement and buildings that store heat and the lack of natural cooling of shade trees and vegetation.

All of this will greatly increase the current disproportionate burden born by NJ’s poor and minority urban residents.

DEP already has developed data and a methodology to document these disproportionate burdens.

Specifically, DEP mapped 9 indicators of environmental or public health risk or impact, which correlate strongly with race and income: poor and minority urban communities bear far higher risks, a classic case of environmental injustice, see:

In addition to urban parks and community gardens, the legislation should include a major new commitment to urban forestry, as one means to offset the impacts of climate change by providing shade trees, parks, and open space.

In addition to a share of the restoration of Parks funds, a portion of the agricultural and open space fund allocations could be directed to those urban program needs.

3. Impose Cost Controls and Planning Reforms

Historically, the NJ Open space program spending averaged something like $200 – $250+ million per year.

Acquisitions were opportunistic, i.e. based on a willing seller, and not required to reflect any larger planning scheme.

Available funds have been reduced to just $71 million, increasing to $117 million in 2016. Actually, available funds are far less when the $32 million in dedicated State Parks money is subtracted from the $71 million.

The existence of huge unmet needs, greatly increased competition between traditional programs, and major new urban priorities that are not funded dictate the need for cost controls and a more efficient and cost effective program.

Such controls include restrictions on purchase of regulated lands, revisions to land appraisal methods, and elimination of funding for private groups and undefined  and controversial “stewardship” activities.

4. Restrict pooling of funds for regulatory compliance oriented projects

The 1997 Act prohibited use of CBT funds for the benefit of regulated entities and regulatory compliance purposes.

The intent was to prevent regulated entities from using public funds for various DEP regulatory compliance obligations, whether DEP permit, TMDL, water quality study, mitigation, enforcement supplemental environmental program (SEP) or Natural Resource Damage restoration or compensation projects.

Open Space funds have a similar potential for abuse.

For example, a private for profit regulated entity could contract with a private non-profit group to acquire land or engage in mitigation. The project that could receive public open space funds via the non-profit involvement could be a requirement established by DEP, EPA or a federal Natural Resource Trustee.

Various regulatory mandates could range from stream buffer restoration/averaging, wetlands mitigation, carbon offsets, carbon sequestration, carbon credits, pollutant trading, NJPDES BACT demonstrations, WQMP requirements, groundwater recharge projects, SEP’s, or NRD projects, among many other possibilities.

To avoid these large potentials for abuse, the bill should flat out ban any co-mingling of public open pace funds with private sector regulated projects or regulated activities – particularly when “leveraged” with private non-profit involvement.

5.  No funds for “stewardship”

The is no legal, regulatory, or policy working definition of “stewardship”. That lack of definition and policy created enormous conflict in the recent debate on a “Forest Stewardship” bill.

Given scarce funds and a “stewardship” program that is not ready for prime time, it is premature ti allocate any funds to that purpose.

6.  No funds for non-profit administrative costs

The SCR84 authorizing Resolution prohibited use of funds by DEP site remediation program staff.

During the public debate on Ballot Question #2, Ed Potosnak from NJLCV, a member of the Keep It Green Coalition, wrote an Op-ed piece that accused DEP of abusing CBT funds by spending them on staff salaries, see:

Potosnak doesn’t know what he’s talking about.

According to DEP, the FY’15 DEP budget funded 266 DEP positions with CBT funds, continuing an 18 year pattern authorized by the original 1996 CBT dedication.

Given those 2 facts, compounded by scarce resources, deep cuts to DEP staff, and huge competing public needs, there should be no funds allocated to private groups.

7.  Apportionment of remaining Open Space funds

After restoring the $32 for Parks capital budget and $3.8 million lease/concession operating budget funds, there are just $35.2 million remaining.

We recommend that those funds be apportioned as follows:

  • open space                  ~~~   $20 million (with 25%, or $5 million allocated to urban programs outlined above)
  • historic preservation     ~~~   $  8 million
  • farmland preservation   ~~~   $7.2 million (with 25%, or $1.8 million, allocated to urban farmers markets and food desert programs outlined above)
  • blue acres                     ~~~   $ 0 (NJ received $400 million in Sandy recovery Blue Acres funding)
  • stewardship                   ~~~   $ 0 (no funding until a program is defined and enacted into law)
  • private non-profits          ~~~  $ 0  (given that DEP staff costs in site remediation were prohibited, so should non-profits)

I appreciate your consideration and look forward to working with you in developing legislation to flesh out the above broad policy recommendations.


[Note: I did not forget about the need to restore Site Remediation, UST, and water resource programs from which funds were diverted by the ballot question.

But those restorations can not be accomplished in implementation legislation and must wait for the annual budget process.]

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