WolfeNotes.com

BB Kind Dead at 89

Bergen Record obit has a good live version of The Thrill is Gone:

• B.B. King, legendary blues musician, dies at age 89

I still remember my first exposure to BB King, in 1969.

We had a black school bus driver named Bob – I never knew Bob’s last name.

Bob would pleasantly greet us as we got on the bus, but otherwise was a private person.

But, I was very surprised to learn about the real man Bob under his bus driver’s uniform and quiet demeanor.

It wasn’t until 7th grade, in 1969, that I met the real man Bob.

It seems that Bob was always our driver on soccer team away games.

As we got on the bus, Bob would step out of character and say: “If you win, we rock – if you lose, we play the blues”.

The first time he said this, I had no idea what he was talking about.

Until Bob played BB King on the long ride home after a loss (he had his bus wired for sound with an 8 track tape deck!).

I had a limited musical experience. I played the trumpet at the time – my models were the brass section of Chicago Transit Authroity (Does Anybody really know what time it is?), Herb Albert and the Tijuana Brass, and a little Louis Armstrong and New Orleans rag from the Ed Sullivan Show. But listened mainly to rock and folk and the FM radio music of the time. I had no idea of blues guitar. And BB King’s sound was awesome.

Long live the King (and Bob too). Memphis, Tennessee:

DEP Rule Proposal Based On Legally Flawed Agreement with Pinelands Commission

DEP Attempts to Ratify Arbitrary Policy Decision Dictated Without Public Review

At the end of yesterday’s wide ranging and lengthy post on DEP’s plans for Pinelands sewers, I argued that the DEP Memorandum of Understanding (MOU) with the Pinelands Commission was illegal because it was a “rule” that was not adopted in accordance with rule making procedures.

The MOU deceptively calls itself a “framework”, but it made major policy and regulatory decisions, including:

• DEP “deemed” Pinelands CMP designated growth areas as sewer service areas without detailed planning required under DEP Water Quality Management Planning regulations, NJAC 7: 15 – 1 et seq.;
• DEP did not enforce WQMP requirements that environmentally sensitive  lands be eliminated from sewer service areas; and
• DEP  unilaterally initiated and conducted planning on behalf of the Counties, a deviation from prior practice, where Counties are the WQMP planning entities.

Once those major decisions were made, DEP and Pinelands staff merely engaged in a tedious technical GIS mapping exercise of reconciling CMP maps with DEP SSA maps.

That exercise is what produced the “WQMP plan amendments” that were the subject of yesterday’s public hearing. It was all a sham, posed after the fact, an attempt to ratify arbitrary dictates from Trenton.

This exercise by DEP and Commission staff was not land use planning required by the CMP or wastewater planning required by DEP WQMP rules  – it was a rote technical exercise. As a result, the public is not able to review facts and planning analyses that formed the basis of the original policy decisions made in the “framework” MOU.

All those decisions were “deemed” by DEP BEFORE technical review or public comment.

I was told, by a reliable professional source, that the MOU was stealthed before the Pinelands Commission: it was not listed on the meeting agenda, it was not in the Commissioners’ meeting packet, and it handed to the Commission by Nancy Wittenberg and approved on the same day without review by the Commission or the public.

That is bad enough – but there are fatal legal flaws in the MOU – which is the basis of DEP’s WQMP rule proposal – that I want to drill down on today.

This is a complex legal issue, but it goes to the heart of democracy and how we govern – including issues like whether the public is involved in major Executive branch decisions by government, whether government decisions are transparent and based on evidence, and whether people have opportunities to challenge government actions.

The general principle is that when executive branch agencies craft policies or regulations to implement laws in ways that establish requirements that significantly impact people or economic interests, that government must do so by subjecting those policies to public review, through a process called rule-making, which includes these steps: 1) propose, explain, justify, and publish the policy; 2) allow public comment and hold a public hearing; 3) respond to public comment; and 4) provide opportunity to challenge the policy in court.

Here are the factors that NJ Supreme Court’s Metromedia decision found define when a government policy is a “rule” that must be promulgated via rule making procedures:

(1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. These relevant factors can, either singly or in combination, determine in a given case whether the essential agency action must be rendered through rule-making or adjudication.

So, let’s examine the DEP Pinelands sewer MOU in light of these 6 factors to see if it meets the definition of a “rule”.

Keep in mind that not all 6 factors must be met – just ONE triggers legal rule making requirements.

1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group;

The MOU applies to over 13,000 acres across the entire Pinelands region. It influences the land use and development pattern in multiple counties and communities throughout the Pinelands. It involves sewers infrastructure which could cost hundreds of millions of dollars, allow building of thousands of new homes, and increased property values and local taxes. CHECK

(2) is intended to be applied generally and uniformly to all similarly situated persons;

The essence of the MOU is that is applies uniformly to all Pinelands CMP designated growth areas and lands situated in those growth areas, with respect to sewer service. CHECK

 (3) is designed to operate only in future cases, that is, prospectively;

The MOU is about wastewater planning, which is by definition a prospective policy that applies to future conditions on the ground. CHECK

(4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; 

The MOU prescribed at least two new legal standards:

a) that lands designated for growth under the CMP adopted under the Pinelands Protection Act are “deemed” by DEP as sewer service areas under the WQMP regulations and Water Quality Management Act; and

b) that lands designated for growth under the CMP adopted under the Pinelands Protection Act and “deemed” sewer service areas are not required to eliminate “environmentally sensitive areas” from from the SSA’s.

These administrative determinations by DEP were not inferable from existing DEP WQMP regulations. CHECK

(5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter;

The MOU itself is described as a “framework” and it reflects a significant new administrative policy by DEP concerning the relationship between the Pinelands CMP and the DEP WQMP regulations.

This is a material and significant change in historic DEP policy under the WQMP rules. CHECK

6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy

The MOU refelcts DEP’s policy decision to “deem” CMP growth areas as “sewer service areas” – and to do so without a detailed compliance review of those growth areas with respect to the requirements of the WQMP regulations. The MOU also establishes a policy to waive a DEP requirement to eliminate ESA from SSA’s.

Obviously, these are regulatory policy determinations. CHECK

• Breaking Down and Summing up:

1. The MOU made substantive regulatory policy decisions that DEP and Pinelands staff complied with and later merely reflected in maps.

2. Those policy decisions constitute a rule, as defined in the NJ Supreme Court’s Metromedia decision;

3. The MOU was not promulgated in accordance with rule making procedures;

4. The MOU “framework” policies were later incorporated – verbatim, and without technical analysis – in a DEP rule proposal. The rule proposal came 3 years after the actual policy decision was made, rendering the rule proposal a sham.

5. Conclusion: The DEP’s proposed rule is fatally flawed – the DEP can’t after the fact comply with rulemaking requirements that should have been followed when the original huge and binding regulatory policy decisions were made in the MOU.

DEP Proposal Would Add 13,000 Acres of New Sewer Service Areas In Pinelands

DEP Waived Detailed Water Quality Planning & Environmental Review Requirements

Biggest Sewer/Land Use Battle Since CAFRA Incorporated State Plan Centers

[CORRECTION BELOW]

The NJ Department of Environmental Protection (DEP) held a public hearing today on a DEP proposal to unilaterally amend  the Atlantic County, Cape May County, Lower Delaware, Ocean County, and Tri-County Water Quality Management Plans (WQMPs).

I was surprised by the sparse public turnout, but representatives of Save Barnegat Bay, the Pinelands Preservation Alliance, Sierra Club, myself, and two local residents testified strongly in opposition to the DEP’s proposal. The public comment period closes in 15 days, so it is critical that you get your comments to DEP (see this for details at bottom).

I first learned and wrote briefly about this on April 25, 2015, when Fred Akers – who was absent today – raised the issue.

Save Barnegat Bay noted that the proposal would add thousands of acres of new sewer service areas in the Barnegat Bay watershed, promoting development and new pollution loadings that would push the Bay towards ecological collapse.

Promoting development and the impervious surface and new pollutant loads all that new development brings to the headwaters of Bay tributaries flat out contradicts Governor Christie’s claims to restore declining water quality in the Bay and makes a mockery of the Gov.’s “10 Point Management Plan”.

PPA objected to DEP supporting the sewering of Pinelands Villages noting that sewering invites a development density and pattern that is incompatible with the design, historical character, and culture of Pinelands Villages. PPA also noted that the DEP proposal treats  all Villages the same, which is in conflict with the Pinelands Comprehensive Management Plan (CMP) which recognizes the variability and historic and cultural attributes and design values of each unique Pinelands Village.

[CORRECTION – I originally wrote that PPA failed to mount a strong opposition – I was dead wrong! I mistakenly interpreted a Pinelands Commission document on the MOU for a PPA document!  My apologies to PPA!!!! See PPA’s critique here.]

A landowner and Vineland resident, Mark Demitroff, raised 3 strong objections: 1)  the proposal would allow sewers in Pinelands Forest Areas – a violation of the CMP – and provided details maps and technical information to back that up; 2) a Pinelands staffer who worked on the proposal had a conflict of interest because he worked for a consulting firm Highbridge Group, and thus “worked for the same entities  he regulates in violation of NJ Conflcits of Interest Law, NJSA 52:13D-16; and 3) a 1999 MOA designated most Pinelands Villages as Hamlets and they do not qualify for sewer service.

I blasted the proposal as “breathtaking and brazen” – harking back to the debate 20 years ago on how DEP implemented the State Plan growth areas in the CAFRA regulatory program – and built on a legally flawed foundation.

• I) Basis and Land Use and Environmental Impacts of the Proposal

According to the public notice, the DEP initiative is based on a MOU between DEP and the Pinelands Commission:

In recognition of the nature and scope of the New Jersey Pinelands Commission’s (“Commission”) oversight and regulation of land use and development within the Pinelands Area, and for purposes of implementing the Department’s WQM Planning rules at N.J.A.C. 7:15, the Department and the Commission executed a Memorandum of Understanding (“MOU”), dated April 9, 2012, to establish a framework pursuant to which the Department’s WQM Planning rules will be administered in the Pinelands Areas. The proposed amendments will modify the SSA delineation in portions of the counties within the Pinelands Areas in order to be consistent with the Pinelands Comprehensive Management Plan (CMP). For consistency with the CMP, the Department deems all lands located within a Pinelands Village, Pinelands Town, Regional Growth Area, substantially developed portions of a Military and Federal Installation Area, and any other area designated by the Commission for the development of centralized waste water treatment and collection facilities to either address a public health problem in accordance with N.J.A.C. 7:50-6.84(a)2 or to accommodate development activities by governmental entities in accordance with an intergovernmental memorandum of agreement executed pursuant to N.J.A.C. 7:50-4.52(c), to be within SSA.

By a waive of DEP’s regulatory wand, the DEP would exempt the Pinelands Commission from compliance with detailed requirements of the DEP’s Water Quality Management Planning rules, NJAC 7:15.

[Clarification – Technically, DEP does not exempt the Pinelands Commission from WQMP requirements because the Counties are the WQMP planning entities responsible for this work. DEP relies on the Pinelands CMP growth area designations which allow sewer service under the CMP. Please keep this in mind throughout this post.]

But just because the Pinelands CMP designates certain areas for development and finds sewers an allowable use does not mean that DEP should blindly rubber stamp that CMP land use policy. DEP has other water resource scientific and regulatory obligations under the Clean Water Act.

Just because the CMP designates an area for growth does not necessarily mean that sewers are compatible with those communities.

The DEP WQMP rules require a build out analysis to determine whether there is sufficient wastewater treatment infrastructure to convey and treat the wastewater; or whether there is sufficient and sustainable source of water supply to serve all the development in the SSA; or if existing surface and ground water quality would be degraded; or if critical habitat for threatened or endangered species would be destroyed.

The Pinelands CMP designation did not address any of these issues, which are required to be addressed under the DEP’s WQMP rules.

Instead, DEP exempted the Pinelands Commission from all these – and other – WQM planning, environmental review, and technical requirements.

The DEP proposal would expand new sewer service areas into over 13,000 acres:

The effect of these changes will be that the new mapping will exactly “match” the boundary edges of the County FWSA maps with the Commission’s maps. These proposed changes would result in a total of 13,003 acres being added into SSA throughout the affected counties, and the removal of 1,070 acres from SSA, as discussed below.

But the DEP proposal does not tell the public how many  new development units would be built in those sewer service areas, or how much new impervious surfaces would be created, or how much the wastewater flow would be generated by that development, or whether existing infrastructure can manage that wastewater flow, or whether there is adequate water supply to serve that new development or what the pollutant loadings would be and whether existing surface and groundwater quality would be degraded.

Amazing.

But it gets worse – not only did DEP waive detailed planning and environmental review requirements, they exempted the Pinelands Commission from complying with DEP WQMP rules that require that “environmentally sensitive areas” (ESA’s)  be removed from any sewer service area:

The boundaries of these areas are those specified in geographic information system coverage provided by the Commission and may include environmentally sensitive areas (“ESAs”) as described in N.J.A.C. 7:15-5.24(b). In recognition, however, of the Commission’s oversight and regulation in the Pinelands Areas, the Department shall not require the removal of ESAs from SSA in these areas. 

The DEP WQMP rules define ESA’s as:

“Environmentally sensitive areas” means those areas identified in a Statewide or areawide WQM plan as land areas possessing characteristics or features which are important to the maintenance or improvement of water quality, or to the conservation of the natural resources of the State. Environmentally sensitive areas include, but are not limited to, areas mapped as endangered or threatened wildlife species habitat on the Department’s Landscape Maps of Habitat for Endangered, Threatened or Other Priority Species, Natural Heritage Priority Sites, wetlands and riparian zones.

Remarkable. Brazen.

• II) DEP Proposal Based On Illegal MOA – Harkens Back to the CAFRA State Plan Debate

The DEP hearing officer, in his introductory remarks today, noted that the proposal was:

initiated by the DEP

That is a direct quote.

The DEP public notice for today’s hearing explains the origin of the proposal as a MOU between DEP and the Pinelands Commission:

the Department and the Commission executed a Memorandum of Understanding (“MOU”), dated April 9, 2012, to establish a framework pursuant to which the Department’s WQM Planning rules will be administered in the Pinelands Areas.

Here is a copy of the MOU.

There are 2 crucial provisions to note, which I discussed briefly above. DEP agreed to the following:

As a matter of policy, it makes no sense for DEP to exempt the Pinelands Commission from detailed WQMP planning requirements under the assumption that the CMP is equivalent to the DEP WQMP.

Similarly, is makes no sense for DEP to exempt the Pinelands Commission from WQMP rules that require deletion of ESA’s from sewer service areas under the assumption that the CMP adequately protects those ESA’s. 

But there are more than policy problems with the approach of relying on the MOU as a basis for DEP’s rule proposal.

As I noted in my testimony today:

1) the DEP proposal and the DEP/Pinelands Commission MOU lack legislative authorization; and

2) the MOU constitutes “rule making” in the absence of compliance with rule making procedures and thus violates the rule making requirements established by NJ Supreme Court in the 1984 “Metromedia” decision.

Let’s take those issues up briefly.

• Legislative authority

The purpose of the DEP proposal is to coordinate the Pinelands Commission’s land use CMP with the DEP Water Quality Management Planning program’s regulatory  requirements under the federal Clean Water Act.

This is a very big deal: trying to reconcile a major regional land use scheme with a Statewide DEP water quality program.

There is no federal or NJ statute that authorizes and directs the DEP or the Pinelands Commission to do this.

In contrast, back in 1993, the Legislature specifically authorized and directed DEP to accomplish a very similar objective.

As shore growth proliferated, it became obvious that there were multiple conflicts between the DEP CAFRA regulatory permitting scheme for the coastal zone and the State Development and Redevelopment (SDRP) land use planning scheme.

To reconcile those conflicts, in 1993, the Legislature passed a law directly DEP to “closely coordinate” the State Plan and the CAFRA regulations.

Based upon that legislative authorization, DEP enacted regulations that streamlined CAFRA requirements in State Plan designated centers, based on various levels of imperious cover.

There was a major political battle between environmental groups, DEP and the development community on how DEP “closely coordinated” or integrated the State Plan in the CAFRA regulatory program.

In contrast, DEP is now trying to do a very similar thing by integrating the Pinelands CMP growth areas in the DEP Water Quality Management Planning Rules, but DEP is doing so with absolutely no legislative authorization.

The Christie DEP has unilaterally initiated the proposal, and in doing so, greatly over-reached given DEP’s historic WQMP role, which has been passive, i.e. to review and approve county and regional and site specific WQMP’s – not to initiate and impose them.

[* The DEP over-reach is similar to the Campbell DEP’s over-reach under “The Big Map” initiative. In contrast, the Christie DEP over-reach is designed to PROMOTE development, while the Campbell over-reach was designed to BETTER REGULATE development.]

But the legal flaws are as bad or even worse that the policy and the institutional outrage.

• The MOU Constitutes a Rule

As DEP’s public notice states, the proposal is based on the MOU between DEP and the Pinelands Commission.

The MOU attempts to insulate the MOU from legal challenge, by this blatantly false claim:

Of course the MOU effectively “changes the substantive requirements” – most notably by DEP waiving the extensive technical requirements to designate sewer service areas and the requirements to eliminate environmentally sensitive lands from sewer service areas.

The MOU “framework” was never subject to public note, public comment, and public hearing requirements that the NJ Administrative Procedures Act requires for rulemaking.

In the MOU, the DEP made substantive concessions to the Pinelands Commission and exempted CMP designated lands from DEP WQMP regulatory requirements that are specifically mentioned in the MOU

The MOU is then presented as the basis for the DEP rule WQMP proposal.

Therefore, legally, the MOU amounts to “rule making” as the NJ Supreme Court defined that in the 1984 Metromedia decision.

The Metromedia decision has forms the doctrine of what factors determine whether an Executive Brach agency – like DEP or the Pinelands Commission – is engaged in rulemkaing and must follow rulemikng procedures under the Adminsitrative Procedures Act.

Here is the heart of the decision – and it illustrates exactly why the MOU was in fact a rule and therefore the MOU and the DEP rule proposal are legally flawed:

Similarly, an agency determination can be regarded as a “rule” when it effects a material change in existing law. See Crema, supra, 94 N.J. at 302; K.C. Davis, Administrative Law Treatise § 7:25 at 186 (2d ed. Supp. 1982); Ford Motor Co. v. Fed. Trade Comm’n, 673 F.2d 1008, 1009 (9th Cir.1981), cert. den., 459 U.S. 999, 103 S.Ct. 358, 74 L.Ed.2d 394 (1982) (an agency determination that changes existing law and has widespread application must be addressed by rule-making and not adjudication). This feature relates not only to fairness to the individual party actually before the agency but to other persons as well. When an agency’s determination alters the status quo, persons who are intended to be reached by the finding, and those who will be affected by its future application, should have the opportunity to be heard and to participate in the formulation of the ultimate determination. See Bergen County Pines Hosp., supra,96 N.J. at 469; Crema, supra, 94 N.J. at 303; Boller Beverages, Inc., supra, 38 N.J. at 151.

We have also recognized that the factfinding process that characterizes rule-making is much more flexible and expansive than that governing quasi-judicial adjudication. Where the subject matter of the inquiry reaches concerns that transcend those of the individual litigants and implicate matters of general administrative policy, rule-making procedures should be invoked. See Dougherty v. Dept. of Human Servs., 91 N.J. 1(1982); Texter v. Dept. of Human Servs., 88 N.J. 376 (1982). The procedural requirements for the passage of rules are related to the underlying need for general fairness and decisional soundness that should surround the ultimate agency determination. See Crema, supra, 94 N.J. 286. These procedures call for public notice of the anticipated action, broad participation of interested persons, presentation of the views of the public, the receipt of general relevant information, the admission of evidence without regard to conventional rules of evidential admissibility, and the opportunity for continuing comment on the proposed agency action before a final determination. See N.J.S.A. 52:14B-4.

We can synthesize from this authority that an agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process. Such a conclusion would be warranted if it appears that the agency determination, in many or most of the following circumstances, (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. These relevant factors can, either singly or in combination, determine in a given case whether the essential agency action must be rendered through rule-making or adjudication.

Send lawyers, guns, and money – the shit has hit the fan!

Exxon Deal Prompts Effort to Dedicate Settlement Revenues To Environmental Restoration

The Senate Environment Committee took testimony today on a bi-partisan legislative initiative (SCR163 – Smith (D-Middlesex) /Bateman (R-Somersett) that would constitutionally dedicate Settlement revenues collected by the state for pollution damages to restore the environment.

The Resolution would amend the Constitution to restrict the use of settlement funds solely

to repair damage to, restore, or permanently protect the State’s natural resources 

The initiative grew out of Governor Christie diversion of $190 of Passaic River pollution settlement funds to close budget holes and about the $125 million of the controversial $225 million Exxon deal.

Unlike legislation, a Concurrent Resolution does not require the signature and approval of the Governor. If passed by both Houses, it goes to the voters as a ballot question in November.

The Legislature can bypass Governor Christie’s virtually certain veto and go directly to the voters. There is little doubt that the initiative would enjoy huge public support, give the public outrage over the Exxon settlement.

The Resolution goes far beyond recently proposed legislation that would require that only 50% of settlement money go to environmental restoration and 50% to budget deficit reduction.

The only question in my mind at this point is whether the Democrats are serious or merely using this symbolically as another political attack on the Gov.’s Exxon deal.

You can listen to the testimony – click on to this and then hit “listen to live proceedings” than “Senate Environment”.

In response to concerns raised by Deb Mans of NY/NJ Baykeeper and myself, the Committee agreed to amend the Resolution to eliminate the use of funds for repayment of environmental bonds.

Avoiding another Open Space DEP staff funding debacle, Chairman Smith agreed to delete the prohibition on use of funds for DEP staff support.

Instead, Chairman Smith agreed with my testimony that the prohibition be deleted and a 5% cap on administrative costs be a more reasonable approach.

It’s a shame that I have to fight the DEP battles – another example of total abdication by the Christie DEP management team that they failed to even show up to testify and defend the DEP’s own Office of Natural Resource Restoration.

The amended Resolution will be heard again on June 8.

Before then, get your cards and letters in to the Chairman Smith, Committee members and Senate President Sweeney.

More to follow on the details, including a blow by blow account of my testimony, in which I blasted the conservation “model” created by Mike Catania of Conservation Resources Inc.

That testimony prompted  a virtually unprecedented interruption and objection from the audience by Deb Mans of NY/NJ.Baykeeper.

Mans objected to me talking publicly about this $1 million sweetheart deal she benefitted from:

CRI administered $1 million in funding for an oyster restoration project in the Raritan Bay which was provided under a civil settlement with Chevron U.S.A., Inc. and the New Jersey Department of Law and Public Safety. The settlement arose from a February 2006 oil spill in the Arthur Kill, the strait separating Staten Island from New Jersey.

From 2007 – 2014, this funding was used on NY/NJ Baykeeper’s Oyster Restoration in the Raritan Estuary Initiative. It funded the first stages of restoring oysters to the Raritan Bay including research and experiments that have shown that oysters can be restored to this area. Through their work in New York City and New Jersey, Baykeeper is showing that oysters can play a fundamental role helping filter pollutants and restore ecosystem function to the Raritan Bay and Hudson River Estuary.

These types of civil settlements are quite common at the Federal level. Realizing this, CRI met with the US Attorney’s office in 2007 after they announced a big settlement in New Jersey that was to be awarded to NFWF, which, in-turn, was going to grant it to other non-profit conservation organizations in New Jersey. We met with the US Attorney in order to determine whether or not a local non-profit could play the role that NFWF typically plays in administering these funds. The US Attorney’s office could not provide an answer to us and it still remains unclear whether NFWF has a monopoly on this type of federal funding. 

DEP Commissioner Martin Was Right To Restore Cuts

Voters Did Not OK Gutting State Parks, Water Resources, and Toxic Site Cleanup

After a $1 million fueled PR campaign that duped NJ voters on the November Open Space ballot question, as the reality of their lies is setting in, to avoid accountability for what they’ve done, the Keep It Green Coalition is now lying to legislators and media.

The debate finally has been engaged as a result of the Legislative DEP budget review, and the KIG spinners are squirming as reality sets in.

One example, a recent Senate debate on deficiencies in NJ’s Shellfish Sanitation Program, has exposed the impacts of the Open Space diversion of $10 million from water resource monitoring programs. As NJ Spotlgiht reported:

Bill Wolfe, a former DEP employee, blamed part of the problem on a ballot question approved by voters last fall that diverted millions of dollars from the DEP’s budget for programs to monitor water quality and other resources.

“We’re running a threadbare approach threatening a $1 billion industry in the state,’’ he said.

As we’ve written the open space ballot diverted $10 million per year from core water resource programs:(source: Jon Miller)

• Barnegat Bay monitoring would be hit and other water quality monitoring for the ocean (coastal counties), all surface and groundwater statewide, shellfish monitoring needed by FDA to verify safety of the shellfish industry on the coast
• Flood projections and warnings would be compromised in floodprone watersheds such as the Passaic and Raritan Watersheds; we can’t be without these systems from a public safety standpoint
• Drought monitoring and projections would be hampered for underground aquifers; this is where most of South Jersey gets its water for drinking

Now the State Parks and coastal marine monitoring cuts are getting media and legislative attention.

This week, Mike Symons at the Asbury Park Press reported on the debate, but under a deeply misleading headline:  Voters OK’d more $ for parks; instead cash feeds salaries

Symons reports on critical Barnegat Bay and coastal programs that were defunded by the open space ballot initiative:

For example, money dedicated for watershed management and monitoring, such as testing water quality in Barnegat Bay and monitoring shellfish waters, streams and aquifers, drops from $16 million under the old formula to $5.6 million in the coming year. The dedication for staffing cleanup of polluted sites overseen by the DEP drops from $9.6 million to zero.

But again, we see the effects of the KIG lies and failure to tell the truth that the KIG stole these funds:

“Park staffing is very important, but it should be funded through the general fund as it has been in the past, leaving the $20 million for preservation projects as the voters intended,” said Amy Hansen, policy analyst for the New Jersey Conservation Foundation.

No mention that KIG stole those staff funds. The arrogance and hypocrisy continue to amaze.

At the same time that KIG members slash State Parks and DEP progressional staff funding and oppose restoration of those cuts, they seek INCREASES in public funding for primarily sham “stewardship” projects conducted by their own organizations and funding their own staff!

Let me break it down and repeat that because it is so amazing:

1.KIG spent $1 million to mislead NJ voters about what they were voting for, by not mentioning – and even denying – that deep cuts would result to Parks and environmental programs from approval of the open space ballot and by attacking critics who exposed the fact that the cuts would occur;

2. KIG defunded State Parks and core water resource and toxic site cleanup programs and celebrated that act;

3. When the deep cuts were understood by Legislative leaders during the debate over implementation legislation, KIG opposed restoration of those cuts and instead demanded MORE TAXPAYER FUNDS be allocated to their own organizations and staff;

4. When the cuts were documented by OLS and fully understood during theDEP budget process, to prevent this being understood by the public, KIG is now lying to reporters and editorial boards;

This is a disgraceful pattern of conduct and it is coming from well endowed, elite organizations who are showing their true colors.