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Assembly Approves Veto Resolution on Last Day of Legislative Session

Big Win For Environmental Groups

[Update below]

At about 5:45 pm last night, on the final day of the legislative session, the Assembly approved ACR 249, to veto the Christie DEP’s proposed revisions to the Flood Hazard, Coastal Zone Management and Stormwater rules as inconsistent with legislative intent. The vote was 45 – 28 (2 abstain) along mostly partisan lines, with republicans backing Governor Christie.

We’ve recommended and urged that since June 1, 2015, the day the DEP proposed the massive 936 page regulatory “overhaul” and have written an entire series of posts, reached out to US EPA, testified to the NJ Legislature, and lobbied with environmental groups to make that happen.

My Trenton friends tell me that it took a letter to Speaker Prieto – spearheaded by Assemblyman McKeon and 17 other Assembly Democrats – to make it happen.

Politico nailed the story, so I’ll just touch on a few points:

With legislative veto, greens notch a rare win against Christie

By David Giambusso

7:22 p.m. | Jan. 11, 2016

TRENTON — The state Legislature sent the Department of Environmental Protection back to the drawing board on Monday, after the Assembly approved a “legislative veto” of proposed changes to flood hazard rules.

The bill (ACR249) was among the biggest priorities of environmental advocates and Democratic legislators who said the DEP’s rule change would compromise the state’s highest quality streams by allowing some development within the buffer zones of Class I streams.

The rule change was criticized by the federal Environmental Protection Agency and with the passage of a concurrent resolution Monday, the DEP will now have to take steps to change the rule. If it chooses not to change the rule to legislators’ satisfaction, both houses will vote again to reject the rule change outright.

“The ball’s now in the DEP’s court,” said Assemblyman John McKeon, who sponsored the resolution in the Assembly, after the vote. “They understand now the Senate and Assembly have spoken … It puts us in a position to exercise our constitutional authority.”

What’s Next? – DEP Goes All Orwell and Digs In

McKeon is exactly right – the ball is in DEP’s court.

My initial thoughts on what the Gov. and DEP might do next was that they would quietly just let the proposal expire and go back to the drawing boards in order to avoid further humiliation – and DEP was humiliated during this debate, with Ray Cantor, DEP Commissioner Martin’s right hand man, being caught misleading the Senate Environment Committee about EPA’s position on the proposal.

If the DEP management team were smart, they would realize that they could re-propopse 3 different rules and stealth the regulatory rollbacks that were so strongly opposed by environmentalists and vetoed by the Legislature.

But apparently there is little strategic thinking and even less humility at the DEP management team, because the Politico story reported that DEP is not blinking, but in Grand Orwellian Fashion instead digging in:

“We remain extremely confident that the proposed revisions of the rule reduce the complexities of duplicative regulations, while maintaining and, in some cases, raising our high standards for protection of our waterways and mitigation of flooding,” DEP spokesman Bob Considine said in a statement. “Specifically, it is not true that the 300-foot riparian zone has been eliminated from the proposed rule. It, in fact, retains the 300-foot stream buffer, which is far above and beyond any requirement of the federal Clean Water Act, which has no buffer requirements.”

Considine’s first point is spin.

As we’ve written, the current storm water management and stream encroachment rules do apply to the same stream “buffers”, but they are not “duplicative”. The rules serve different objectives: the storm water “SWRPA” buffer is designed to protect water quality and the stream encroachment “riparian zone” buffer is related to water quantity (volume) and designed to reduce the risks of flooding.

[Note: the DEP stream encroachment rules make this very clear (see NJAC 7:13-10.2

(b) The riparian zones established by this chapter are separate from and in addition to any other similar zones or buffers established to protect surface waters. For example, the Stormwater Management rules at N.J.A.C. 7:8 and the Highlands Water Protection and Planning Act rules at N.J.A.C. 7:38 establish 300-foot Special Water Resource Protection Areas and buffers, respectively, along certain waters. Furthermore, the Freshwater Wetlands Protection Act rules at N.J.A.C. 7:7A establish 50-foot and 150-foot transition areas along freshwater wetlands and other features that are also regulated under this chapter. Compliance with the riparian zone requirements of this chapter does not constitute compliance with the requirements imposed under any other Federal, State or local statute, regulation or ordinance.

Considine’s second point (“it’s not true“) is so misleading that it amounts to a flat out lie. First, no one has claimed that a “300 foot riparian zone has been eliminated”.

The DEP proposal repeals the 300 foot “SWRPA” buffer in the stormnwater rules and replaces it with the 300 for “riparian zone” buffer in the stream encroachment rules. That’s like trading a Mercedes for a Kia.

As we’ve written exhaustively (but let me summarize):

1) the riparian buffers in the stream encroachment rules only apply to streams with a “defined bed and bank” and do not regulate critical headwater streams (ephemeral, intermittent, headwater streams, swales and seeps, less than 50 acre drainages);

2) riparian buffers allow significantly more disturbance and provide far less protection of buffers than the SWRPA buffers in the storm water rules; and

3) SWRPA buffers are linked to other Clean Water Act rules and the Surface Water Quality Standards, which provide federal enforcement and other enforceable critical legal and regulatory policy triggers that the State stream encroachment rules lack.

Mr. Considine must know this, therefore he is either lying or incompetent (or perhaps both).

Constitutional Crisis?

The Legislature just exercised a Constitutional power and initiated a Constitutional separation of powers review process of checks and balances between the Executive and Legislative branches

This is a very big deal, and its rarely been done.

Technically, the next step is for DEP to either abandon the rule or modify the rule – here is the Constitutional process:

 The Legislature may review any rule or regulation to determine if the rule or regulation is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement.  Upon a finding that an existing or proposed rule or regulation is not consistent with legislative intent, the Legislature shall transmit this finding in the form of a concurrent resolution to the Governor and the head of the Executive Branch agency which promulgated, or plans to promulgate, the rule or regulation.  The agency shall have 30 days to amend or withdraw the existing or proposed rule or regulation.  If the agency does not amend or withdraw the existing or proposed rule or regulation, the Legislature may invalidate that rule or regulation, in whole or in part, or may prohibit that proposed rule or regulation, in whole or in part, from taking effect by a vote of a majority of the authorized membership of each House in favor of a concurrent resolution providing for invalidation or prohibition, as the case may be, of the rule or regulation.  

If DEP fails to act in the next 30 days, the Legislature would then have to follow through and pass joint Resolutions in both Houses to finally veto the DEP proposal.

Based on DEP’s press statements, it looks like that will happen.

But what would come next (after a legislative veto)?

I assume that the preexisting rules would apply.

Obviously more to follow.

 [Update: Oddly, NJ media seems to be ignoring this story. Odd, because:

1) The Legislature invoked a rarely used Constitutional power and the politics of Legislative Republicans backing the deeply unpopular Governor on a highly popular clean water issue is revealing of serious dysfunction;

2) the DEP policy and regulatory proposal at issue is hugely significant – it impacts flooding and stream buffers in almost every town in NJ.

3) It’s the first time I’m aware that Christie has suffered a political setback by the Legislature on his environmental rollback agenda.

4) It was a top priority of numerous environmental groups.

5) The C1 300 foot stream buffers and Clean Water Act based antidegradation policy were the foundation for the Highlands Act and remain controversial, as Christie DEP has abandoned the C1 program and rolled back related rules.

6) The DEP proposal was opposed by US EPA, FEMA and the NJ League of Municipalities – the latter two groups warned that it failed to meet National Flood Insurance Program requirements and jeopardized NFIP eligibility.

EPA’s unusual and harsh opposition drew the attention of Washington DC beltway environmental policy outlets.

So, what explains the media blackout of what is a pretty big story?

Nothing in Bergen Record (where they have 2 environmental reporters and despite all those C1 stream and reservoirs in Bergen & Passaic County, while they have time and space to publish bullshit AP oyster stories), NJ.Com, AP, or Gannett (APP, Morris Daily Record, etc) – the only stories I found were in Politico and NJ Spotlight. ~~~ end update]

Port Authority Rollback a Major Assault And Environmental Injustice To Newark

Will Newark Mayor Baraka Sit Back and Take It?

“time for some pollution problems in Newark”

The Clean Air Strategy for the Port of NY and NJ was developed during 2008 and 2009, with input from a diverse set of stakeholders. The purpose of CASP is to define a commitment by the Port Authority of New York and New Jersey (Port Authority) and its Strategy Group Partners to ensure that air emissions generated by mobile sources associated with marine terminal operations and activities decline even with anticipated future maritime transportation growth over the next ten years. The goal of the Clean Air Strategy for the Port of NY and NJ is to achieve a minimum 30% net reduction of criteria pollutants (including PM2.5) and 50% net reduction of greenhouse gases over 10 years, after accounting for emission increases resulting from increases in goods movement. On March 10, 2010 NJDEP, and other Strategy Group partners on the Clean Air Strategy Plan Steering Committee, signed a “Joint Statement of Intent to Support Port Sustainability for the New York- New Jersey Metropolitan Area.” The agreement memorializes the shared commitment to work collaboratively to reduce emissions from the maritime operations of the Port of NY and NJ.  ~~~ Source: Christie NJ DEP

I am appalled to just now read that the Port Authority abandoned  it’s commitment to reduce toxic air pollution emissions from diesel trucks serving the Port, see:

• Port Authority drops plan for cleaner trucks

But I can’t figure out why Scott Fallon of the Bergen Record, while mentioning US EPA, let the Christie Administration completely off the hook.

It is a sharp reversal from plans announced by the Port Authority and the U.S. Environmental Protection Agency five years ago that would have denied entry to all trucks that didn’t meet 2007 federal emission standards beginning next year in a major effort to help improve the air quality in the state.

Bridegate left no doubt about how the Governor is able to assert this power at the PA.

This was a significant policy decision by the Port Authority (PA) that has major impacts on the health of the people of Newark and nearby NJ communities.

Accordingly,that move must have had a green light from Governor Christie.

In addition to Gov. Christie’s policy role on the Port Authority Board, NJ DEP was a partner in developing the PA’s “Clean Air Strategy”

In creating this Strategy, the Port Authority worked closely with the following partners (Partners) who have endorsed this Strategy: New Jersey Department of Environmental Protection (NJDEP), New York State Department of Environmental Conservation (NYSDEC), The City of New York (including the Mayor’s Office of Long Term Planning and Sustainability and the Department of Transportation), New York City Economic Development Corporation (NYCEDC), New York Shipping Association (NYSA), United States Environmental Protection Agency (US EPA) Region 2, City of Bayonne, City of Elizabeth, City of Jersey City, and City of Newark. This group, along with the Port Authority, comprised the Strategy Group, which oversaw the development of this Strategy.

The Christie DEP’s dirty diesel “Stop The Soot” program touts and is directly involved in the PA’s efforts:

Ports of Newark and Elizabeth

The Port Authority of New York and New Jersey, along with its partners, has undertaken a comprehensive effort to inventory sources of diesel emissions and identify strategies to reduce them:

A Clean Air Strategy for the Port of New York & New Jersey

NJDEP has completed its Phase 1 “Estimated Air Quality Impacts on Surrounding Communities of PM2.5 and SO2 Emissions Resulting From Maritime Operations at Elizabeth Port Authority Marine Terminal and Port Newark”. This study uses a computer model to estimate the air quality and health impacts from a variety of diesel emission sources at the Port, using the Port’s inventory of diesel emissions. The Phase 2 report, “Estimated Air Quality Impacts on Surrounding Communities of PM2.5 and SO2 Emissions Resulting From Maritime Operations at the Elizabeth Port Authority Marine Terminal and Port Newark: Phase 2 Future Impacts (2015)” is complete. Phase 3 will estimate the air quality impacts from diesel truck traffic upon several residential areas in the Newark and Elizabeth area.

The Christie DEP’s Air Quality Analysis found significant cancer and other air pollution health risks:

• Diesel exhaust cancer risk: The predicted cancer risk in surrounding residences decreases between the Phase 1 baseline and Phase 2 future years by an average of nearly 40 in a million but is still between 10 and 100 in a million which is high enough to justify long term efforts to further reduce cancer risk.
• Emissions from marine terminal activities were above New Jersey’s significant impact levels (SIL’s) for 24-hour PM2.5 in some surrounding communities in the Phase 1 baseline but not in the Phase 2 future case.

Maybe Fallon let Christie and NJ DEP off the hook because of his primary source for the story:

“They completely gutted the entire program with no promise to come back,” said Amy Goldsmith, chairwoman of the Coalition for Healthy Ports, a national organization pushing for the ban.

Surely Fallon knows that Ms. Goldsmith also is the head of the NJ Environmental Federation (now renamed “Clean Water Action”) who endorsed candidate Christie for Governor in 2009 in part, specifically based on his promise to ratchet down on diesel emissions and implement environmental justice programs.

The NJEF endorsement press release cheered that Christie would:

• Requiring retrofits of diesel engines used under state contracts – this will save lives, reduce health care costs and avoid days lost at school and work but it has been rejected by Governor Corzine;

Since that time, I’ve seen very little press coverage – or efforts by environmental groups – to hold Christie, NJ DEP or the Pot Authorty accountable for their commitments.

This political, advocacy, and accountability failure needs to be a part of this story.

And I don’t recall a public apology from Goldsmith and the NJEF Board for the Christie endorsement.

Foresters suddenly express interest in protecting habitat & golden wing warbler

DEP Plan Seeks To “Mimic” & “Purposefully Create” Utility ROW Conditions

Plan Calls For Herbicide Treatments In Public Water Supply Watersheds

Destroying a Forest To Save It

This is what “stewardship” looks like – a clearcut, no?

[Intro note: I don’t pretend to be a birder or a botanist, so urge readers with expertise to jump in and comment where I got it wrong or failed to include nuance or important issues.]

The DEP’s proposed logging plan for Sparta Mountain is designed primarily to promote recovery of golden wing warbler (GWW). The DEP plan is based on an Appalachian regional GWW recovery plan.

The DEP Sparta Mountain plan states:

The following recommendations are meant to broadly describe target treatments using GWWA as an umbrella species for ESH creation. Actual implementation will follow the guidelines set forth by the GWWA Working Group – Best Management Practices for GWWA in the Appalachian Region 2013. (page 29).

But after reading the “guidelines set forth by the GWWA Working Group”, it is clear that the DEP Sparta Mountain logging plan contradicts those guidelines.

Conflicts with the Appalachian regional GWW recovery plan

The Appalachian Regional GWW recovery plan explicitly recognizes that there may be competing conservation objectives. The Appalachian Plan describes two specific types of locations where the GWW recovery BMP’s are NOT appropriate or recommended and affirmatively “should be avoided“:

When possible, avoid places where other rare or imperiled resources are higher priority and have conflicting needs, and where Blue-winged Warbler co-occurs and management for Golden-winged Warbler might hasten Blue-winged Warbler invasion, increasing the probability for hybridization. ~~~ Golden-winged Warbler (GWWA) Working Group. Best Management Practices for GWWA in the Appalachian Region. 2013

Repeat: The Appalachian Regional GWW recovery plan recommends that managers avoid “places where other rare or imperiled resources are higher priority and have conflicting needs”.

In our prior Part One post, based on the US Forest Service Report and the NJ Highlands Act, we identified several “higher priority conflicting needs” that must be considered, including water resources, forest ecology, habitat conservation, and recreational values. Specifically:

1) large blocks of intact Highlands forests with full canopy cover are rare and imperiled;

2) high quality NJ water resources and pristine potable public water supplies are rare and imperiled;

3) interior neo-tropical migratory birds and their habitats are rare and imperiled;

4) opportunities for outdoor passive recreation are rare and imperiled; and

5) the capacity to sequester carbon to mitigate climate change is rare and imperiled.

All of these higher priority needs that conflict with the DEP’s proposed logging plan.

The Appalachian Regional GWW recovery plan also explicitly recognizes the risks and problems related to hybridization with Blue winged warbler (BWW) and recommends that those places be “avoided”.

Yet the DEP’s Sparta Mountain logging plan precisely documents the same BWW risks and places that should be “avoided”. The DEP plan states:

Another problem for GWWA has been invasion of its habitat by the closely related Blue-winged Warbler (BWWA). BWWA populations have expanded as historic GWWA shrub-scrub habitats have succeeded into young forest. GWWA and BWWA hybridize readily, and BWWA can often out-compete GWWA to claim nesting sites on marginal GWWA habitat. (@ page 28)

Therefore, the Appalachian Regional GWW Recovery Plan specifically recommends AVOIDANCE on places like Sparta Mountain, where competing objectives and risks of hybridization with BWW exist.

These conflicts alone should be sufficient grounds to reject the DEP’s proposed plan.

The numbers don’t work – NJ too small a fraction of GWW habitat range

But in addition to this basic conflict between the Appalachian Regional Plan upon which the DEP’s Sparta Mountain Plan is allegedly based, the data in the Appalachian plan show that, even if the Sparta Mountain plan were to succeed, the GWW benefits would be tiny.

The DEP Sparta Mountain logging plan applies to about 3,400 acres – the GWW range is 2,070,000 acres. The Sparta Mt. logging would amount to less than 0.2 percent of the total GWW range.

The benefits to GWW would be so small, that they could not possibly justify the negative water resource, ecological, conservation, and recreational values of logging Sparta Mountain

Specifically, the Appalachian Plan sets two basic short and intermediate term goals: increase habitat and populations (see Table 1 below):

The 2020 Appalachian regional population goal is to increase the population by 5,000 birds, from a 2010 population of 22,000 to 27,000.

According to DEP, there are only 25 breeding pairs of GWW in the entire State – an estimate not even mentioned in the DEP’s plan. (Morris Daily Record story):

The primary goal was to maintain a forest ecosystem that would attract golden-winged warblers. These 4.8-inch songbirds, adorned with splashes of bright yellow plumage, are listed as an endangered species in New Jersey, with only about 25 breeding pairs remaining in the state.

“In the late 90s, there were about 100 pairs recorded,” said John Cecil, vice president for stewardship with New Jersey Audubon. “So, that should give you a sense of how dramatic the decline has been.”

NJ’s GWW population (25 breeding pairs, 50 birds) is less than 0.02% of the estimated total 2010 population of 414,000.

Even if NJ’s statewide GWW population were all located on Sparta Mountain and restored to 1990 levels by 2020 (which is not technically possible), that would only contribute 4% to the regional GWW increase goal.

Does that highly uncertain and very small positive contribution justify all the very likely significant negative impacts of logging over 3,000 acres of intact forest in the Highlands Preservation area? I don’t think so.

Similarly, NJ forest comprise a minuscule fraction of the GWW Appalachian range – take a look at the map from the Appalachian regional GWW recovery plan:

The habits goal is an increase of 27,000 acres by 2020. Sparta Mountain logging would create an insignificant contribution toward that goal that clearly would not justify adverse impacts of the logging.

Climate change changes everything – including habitat range

In addition to Sparta Mountain’s ability to provide de minimus benefits to GWW population and habitat acreage goals, there is scientific evidence that suggests that GWW habitat will no longer even be present in NJ as a result of global warming.

Here’s a key factor that National Audubon Society identifies See:Global Warming and birds:

Global warming is the greatest threat to birds and other wildlife in human history. The rate of global warming is already impacting birds, their prey, and their habitat. Those impacts will become more severe over the coming decades, leading to the loss of one-quarter to one-third of all species on earth, including many bird species. […]

Is Global Warming Already Affecting Birds?

Scientists are already seeing alarming impacts of global warming on birds. More than 80% of plant and animal species studied have shown changes in the timing of migration or reproduction, shifts in habitat or migratory routes, or other changes associated with climate change. Some of the observed impacts on birds include:

• Several North American warbler species have shifted northward more than 65 miles. The Golden-winged Warbler’s range has moved nearly 100 miles north just in the past two decades.

No herbicides in public potable water supply watersheds

On top of all these fatal flaws, the DEP plan also relies on extensive herbicide treatments.

Here is the Appalachian Plan’s promotion of that:

Herbicide Application: Apply herbicides that selectively target woody plant growth, especially in combination with other management tools such as fire, grazing, or mowing to retard plant succession and prolong the period of habitat suitability. (page 6)

And here is the DEP’s Sparta Mountain’s plan with respect to herbicide use:

1. Pesticides are not proposed to be used in this FSP, but select herbicides may be used as needed. No broadcast herbicide application will be done within 100 feet of wetlands, vernal pools, or ephemeral ponds. (page 22)

A perverse aspect of the DEP plan with respect to herbicide use is that logging will increase sunlight hitting the forest floor. It is well known that increasing sunlight on the forest floor promotes explosive growth of invasive species.

So, after creating the conditions to cause huge proliferation of invasive species, the DEP plan calls for more herbicides to kill them:!

Before implementing management proposed in this plan, invasive species populations will be evaluated at project sites, and when more than five percent of the vegetation consists of invasive plants, the site will be pre-treated with mechanical or herbicide applications deemed most appropriate for the species in question. (page 32)

It is ludicrous to promote the use of toxic herbicides in the forests that protect the Highlands water supply for millions of NJ residents.

And herbicides have a negative impacts on ecosystems, including the GWW.

Twisted perverse logic – Killing the forest to save it

Finally, I close with stating a completely bizarre stated justification for the DEP’s logging plan.

In essence, it’s kind of like the absurdity of the Vietnam war military logic in the town of Ben Tre: “We need to destroy a village to save it”.

According to the DEP plan, we need to create utility line ROW conditions in mature intact forests.

Seriously. The DEP Plan notes that GWW previously benefitted from utility ROW, but now that same ROW is being eliminated by new federal rules mandating more aggressive ROW clearance. So therefore, more ROW like habitat needs to be “purposefully created” by logging mature forests:

The DEP plan relies on this same absurd logic on ROW conditions with respect to rare plants – remarkably, the DEP plan calls on “mimicking ROW”:

Instead of leaving their existence to the fate of the utility companies, we can manage areas outside of the ROWs near existing source populations to become reservoirs for these plants by mimicking conditions on the ROW.  (page 27)

In Part three, we will look at how logging is exempt from environmental regulations, including all local land use regulations, Highlands Act restrictions, steep slopes, vernal pond, wetlands, stream & lake buffers, and soil erosion requirements.

[Absurd Endnote: Meanwhile, Pennsylvania and Appalachian forests are being decimated by fracking and mountaintop removal coal mining, without a peep from all the GWW fans.

Or is that destruction beneficial, because it creates more early successional forest habitat like utility ROW’s?

Attempt to avoid “chaos” created by Court decision

Legislature moves to restore status quo on public access

[Update and Notes below]

Taking the Riverline into Trenton this morning, I was thrilled to see two bald eagles perched side by side at the top of a tree near their nest in the Trenton-Hamilton marsh. Awesome! Although I pass the nest regularly, I’d never seen them both so clearly before.

And when I got to Trenton for what I assumed would be a last day of the legislative session symbolic dog & pony show before the Senate Environment Committee in response to the December 22 Appellate Court decision striking down DEP’s public access rules, I saw even more extraordinary and unusual things.

First off, DEP Commissioner Martin was there early and eager to testify – I think this is only his second appearance before a legislative committee in his 6 year tenure (aside from annual budget hearings).

[Note: Commissioner Martin refiused numersous requests to testify before the Senate Environment Committee. Yet Chairman Smith gave Martin a complete pass for this gross pattern of intransigence. But when Martin requested a special hearing, he got it unconditionally granted by Smith. Bad move.]

Chairman Smith opened the hearing by saying that Commissioner Martin had called him (and unnamed environmental leaders) yesterday to say we have an emergency situation as a result of the Appellate Division decision striking down DEP’s regulations for lack of legislative authorization.

Smith agreed that this was an emergency that justified immediate introduction and passage of a bill – in the next 72 hours before the end of the session – to “avoid chaos” in important coastal programs. Smith said he would not allow any amendments but would listened to testimony. (S3321 – the bill would amend CAFRA and the Waterfront Development Act to authorize DEP to regulate public access and require access, either on-site or off site – text not available electronically yet.)

Smith said he had spoken with Senate President Sweeney and the bill was already on the Senate board list for Monday, the final day of the session. Smith said Martin told him that he had spoken with Assembly Speaker Prieto and presumably the bill was greased there as well.

Martin then testified that the court decision jeopardized significant public access programs, including a threat by the US Army Corps of Engineers to suspend beach replenishment and coastal dune construction.

Senate Van Drew, a co-sponsor of the bill, then appeared to testify, at which point Smith joked of the need for “a defibrillator”!!

[Note: Via this remark, Chairman Smith had no problem making it very clear that he does not agree with Sen. Van Drew. Yet Smith failed to do the same for Christie Cabinet member DEP Commissioner Martin. Another bad move that show weakness.]

It was surreal.

Evocative of Naomi Klein’s shock doctrine, but a bill is being rammed through merely to retain the status quo. Since the status quo regulatory framework was defined by the Christie Administration and is seriously flawed, obviously this is not ideal. By claiming that an “emergency” exists, Martin avoids critical scrutiny and a public debate on the Christie public access policy. How convenient!

Chairman Smith then pledged to create an Ad Hoc Stakeholder group in the new Legislative session to re-examine the DEP’s public access rules and new legislation to revise them.

I question whether such a group could ever produce a consensus or whether their recommendations would produce legislation that would advance the public trust doctrine and expand public access, including strict legislative standards on essential elements like pre-emption of municipal powers over beaches, closing loopholes to assure that all facilities are included in the program, and requirements to provide parking, restrooms, and financing for off-site access.

There were minor objections by the Chamber of Commerce, who asked to weaken the “feasibility” standard for providing public access by adding the word “appropriate”. Smith rejected that, no amendments.

The NJ Business and Industry Association also raised objections and asked for an amendment to exempt Homeland Security designated critical infrastructure. Smith rejected that as well and admonished Sara Blum to get her act together and better coordinate with her Chamber of Commerce colleague.

The attorney for the Hackensack Riverkeeper & NY/NJ Baykeeper – the plaintiff in the lawsuit that created the problem – testified, but failed to understand Chairman Smith’s direction. She asked for amendments. She claimed that the bill would NOT reinstate the DEP 2012 CAFRA rules (as expected by DEP and legislators) and did not address all the issues ruled on by the Court.

After her testimony, echoing my “Pyrrhic victory” characterization, Chairman Smith quipped: “Always remember: be careful what you wish for”, which drew laughter from the audience who understand how ridiculous the testimony and legal challenge were. Both groups now have zero credibility.

But I don’t find it funny – I think it is outrageous that Riverkeeper and NY/NJ Baykeeper were so incompetent in launching the legal challenge that produced the Court’s opinion.

After brief testimony by many supporters of public access, including coastal and bayshore Mayors, and the Committee approved the bill unanimously.

I had not planned to testify when I signed up to support new legislation in concept (a bill was not even available).

But after I heard the lawyer for the plaintiff disagree that the current DEP rules struck down by the Court would be restored via passage of the legislation, and thinking about that for a moment, I decided to make one procedural point.

The Governor and DEP have emergency rule making powers.

While I oppose the DEP’s rules, I advised that in order to eliminate any legal ambiguity that might invite another lawsuit, DEP should adopt the current rules via emergency rule making procedures.

More to follow, before this new public access/public trust Ad Hoc Stakeholder process kicks off.

[Embarrassing endnotes:

1. I like Senator Codey, but today he made a revealing and perhaps the dumbest remark I can recall – this is what he said:

My fear is that if we don’t do something, chaos will result.

People will be running though people’s yards and saying I have beach access.

I think we all want beach access – but unregulated? Absolutely not.

WTF is he smoking? Does he really think the hordes of bennies will descend on the mansions of Mantoloking?

2. Speaking of dumb and embarrassing moves, check this one out:

Before the hearing began, I struck up a conversation with the gentleman sitting next to me. I began by noting the unusual appearance by Commissioner Martin. I recalled the only two times he had appeared. The gentleman seemed to question that claim, so I cited the 2 specific hearings and he stood down. I then noted that the Christie Administration was taking the issue very seriously and getting out in front of the issue and framing the debate.

I then asked who the gentleman was representing – and he introduced himself as Bob Consodine, head of DEP Press Office!!

Yikes! Totally humiliated, I then introduced myself –  and he immediately and curtly said he knew who I was! ~~~ end ]

[Update – 1/8/16 – 

1. This “emergency legislative” strategy is not without legal risk.

By DEP requesting and the Legislature passing and Gov. signing a new law, they are confirming the Appellate Court’s ruling that DEP lacked legislative authorization to regulate public access under CAFRA and Waterfront Development laws.

Currently, there are hundreds or perhaps thousands of CAFRA and/or waterfront development permits with public access conditions.

If DEP lacked legal authorization to impose those conditions, they could all be invalid, subject to appeal and not enforceable.

2. The prudent approach would be for DEP to file an appeal with the NJ Supreme Court and exhaust the judicial process.

It is highly unlikely that the US Amy Corps would abandon coastal projects or federal funding during a judicial view process.

During the appeal process , there would be time for the legislature to consider amending and strengthening the current laws on Public Trust doctrine and public access issues, including specific standards and policies.

Only if the Supreme Court refused to hear the case or affirmed the Appellate Court should DEP and the Legislature acknowledge a lack of existing authority.

The “emergency” approach only invites more ultra vires challenges.

3. The “emergency” is manufactured in order to dodge accountability and frustrate democratic debate. ~~~ end update.]

“Stewardship” Is Guise for Logging, Hunting & Corporate Interests

The DEP just released a draft “Forest Stewardship Plan – Sparta Mountain Wildlife Management Area“.

The NJ Herald has an overview story today, see:

• State prepares stewardship plan for Sparta Mountain

The proposal reignites a nasty debate over the role of logging in NJ public lands management under the guise of “stewardship”.

Back in 2013, proposed legislation to create a statewide “Forest Stewardship” program on State lands, based on private 3rd party certification by the private Forest Stewardship Council, was opposed by some environmental and public interests groups and failed to pass.

DEP proceeded with the “Forest Stewardship” initiative, despite the lack of legislative authorization and policy guidance. Apparently, DEP revised its own internal forest management policies and practices, including public “stakeholder” involvement, in response to this controversial legislative debate. But the proposed draft plan preceded those changes:

Recently, the NJ State Forest Service (SFS) proposed a 14-step process in the creation of forest stewardship plans on state lands with guidance from stakeholders throughout the planning process. This plan was initiated years prior to this process; therefore it has not observed all 14 steps. However, measures have been taken to consult stakeholders during the early phases of this plan, and in recognition of this new process, measures will continue to be taken to solicit stakeholder comments prior to implementation of management activities. (@ page 5)

Public comments can be submitted until January 24, 2016. A form to submit comments to DEP can be found here.

The Players

Before summarizing some of the issues raised by the draft plan – which we will do in part two –  let me first outline the institutions that are involved and their interests.

A look into the players and their motivations reveals that special interests in forestry consulting, commercial logging, hunting, DEP bureaucracy, and narrow “conservation” views have teamed up to undermine the broader public interest and competing public lands management and forest uses.

First, the plan was prepared by a private forestry consultant for the DEP’s Division of Fish and Wildlife (DFW).

The professional arrogance and naked economic motivation behind the draft plan are not merely to generate additional consulting forestry business.

But, as the plan itself makes clear, the strategic objective is to discredit and dismiss the public’s so called “passive” forest “preservation” approach and instead rebuild an economically viable forestry industry in NJ:

While resources were concentrated on preservation efforts, little attention was afforded to the impacts of converting this much land to public ownership in such a short time. The public’s attitude towards “preserving” public land became ingrained on passive ownership, and local industries associated with the harvesting and processing of forest products from these properties declined steadily. The industry decline was compounded by the increased availability of lucrative land clearing work associated with the large scale development clearing. While development has slowed some, the industry dynamics remain, and very much affect stewardship possibilities. The absence of a viable market for forest products eliminates any income potential from wood products to offset the costs associated with stewardship work. It creates a financial burden that prevents landowners from enacting practices to enhance forest heath and resiliency. Because of this, it is important for leaders in conservation to find environmentally sustainable and socially responsible ways to utilize New Jersey’s renewable forest resource as a way to offset costs associated with stewardship on a meaningful level. With public land occupying a significant proportion of New Jersey’s forests, it is imperative that public officials consider the socioeconomic impacts of their actions, as well as how this impacts surrounding private forest lands. (@ page 18).

I exposed this economic motivation to restore an in state commercial logging industry during the controversial debate on proposed “Forest Stewardship” legislation, by quoting the testimony of the NJ Farm Bureau:

“In the early 1980’s, the state stopped participating in timber sales. So the state lands that were managed in timber, up to that point in time, were an important part of attracting the timber industry to the State. The State owns half or more of the wooded lands, so its been on the back of smaller producers to attract competition to the state. And what they’ve ended up with is the one guy who wants to come and cut in NJ, kind of setting the market price. And so we’ve had a depressed value of our wood products.

We see, by the State re-entering into a managed timbering process, that more vendors will be attracted  to come into the state and then they’ll pick up those smaller [private] parcels … and we’ll see an economic benefit to our state, for the private forest lands as well as the public lands, because landowners will have more options in how they do those managed cuts. […]

And then its the ability of the State to recoup those costs through the sale of the timber. … 

With the increased participation by the state we will see increased competition amongst those that harvest these products and better prices  which them improves the overall wood and timber industry in the state.

So, the context for this plan must be a “camel’s nose under the tent” threat to begin expansion of a commercial logging industry on state lands for timber from northern hardwood forests.

Shifting gears from forestry to DEP DFW.

While non-game species and habitat goals are mentioned, experience has shown that the priority goal of the DFW is funded by and heavily influenced by recreational hunters:

To maximize the recreational and commercial use of New Jersey’s fish and wildlife for both present and future generations.

The draft plan builds on a prior pilot “stewardship” plan by NJ Audubon Society, a self described “conservation” group that has significant economic interests in “stewardship” and “mitigation” and related consulting and land management practices.

[* Note: The draft plan would increase logging about six-fold (i.e. thus headline claim of a “vast expansion”), compared with NJA pilot annual logging rate. More to follow on details.]

NJA’s “stewardship” approach – particularly with respect to creation of early successional forest habitat –  just so happens to coincide with the interests of and is funded by major corporations, like PSEG. More power line and pipeline ROW = More early successional habitat! Yay!

A good example of those conflicts of interests that lead to abuses can been seen in the controversial Susquehanna-Roseland power line through Delaware Watergap – the power companies effectively corrupted federal regulators with a $60 million mitigation deal, which conservation groups like NJA benefitted from via either mitigation work or land acquisition (in addition to ROW work with PSEG).

At best, NJA has a conflict of interest with respect to the draft plan. In fact, some have described NJA’s work as more like that of a private consultant than a conservation group.

Flawed Conservation Rationale

We are left scratching our head, because the DEP proposal is at odds with the fundamental conservation strategy that led to the passage of the Highlands Act.

The prime conservation imperative in passage on the Highlands Act was preservation of the existing large tracts of contiguous forest, maximization of forest canopy cover, and prevention of fragmentation.

Those regional management objectives were initially espoused by the US Forest Service:

• The Highlands serve as a major migratory flyway for many neotropical bird species, many of which populations are in decline. Of particular concern to ornithologists are the 70 to 75 species of interior nesting neotropical migrants such as the red-eyed vireo, American redstart, Kentucky warbler, and eastern pewee. These species require large undisturbed forest patches.

• Fragmentation and alteration of habitat continue to pose the greatest threat to the biological communities in the Highlands. The rapid expansion of urbanization encroaches on and fragments habitat, destroys individuals as well as populations, and potentially threatens the continued existence of many biological communities. Degradation of habitat by direct destruction or indirectly through pollution, erosion, introduction of invasive species, or fragmentation threatens the existence of species, diminishes natural communities, and reduces genetic variability.  ~~~ NJ/NJ Highlands Regional Study (US Forest Service, 2002)

Water and other ecological resources are arguably the most important and valuable forest product produced in the Highlands Region. Raw water has a real value to society for human use and consumption and ecological services. Persons who own “vacant land” are producing water for the benefit of society.  ~~~ Highlands Regional Plan

A fundamental assumption in the Highlands conservation strategy was that fragmenting forests and opening the canopy were to be avoided because they created a host of negative effects and dynamics, perhaps most important was because disturbance increased edge effects, destroyed interior forest habitat, created erosion, and increased sunlight on the forest floor fueled a proliferation of invasive species.

In Part Two, we will examine the draft plan and show how it conflicts with the the objectives of the Highlands Act and public lands management. We also will question the narrow conservation objective to promote habitat for golden wing warbler.