The Christie DEP Is Trying To Force Sewers and Dense Development Into Pinelands Hamlets and Villages

May 13th, 2015 No comments

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:

MOU

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:

MOU2

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!

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Senate Moves To Block Gov. Christie’s Diversion of Environmental Funds

May 11th, 2015 No comments

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. 

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As Facts Emerge, Keep It Green Keeps On Lying On Open Space Diversion

May 9th, 2015 2 comments

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 Programhas 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.

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Senator Cardinale Walks Back “Drainage Ditch” Remark

May 6th, 2015 No comments

But Senator Expands Attacks on DEP Category One Water Quality Program

Blames Bergen County Flooding on DEP Reservoir & Stream Buffer Protections

I must have gotten under Senator Cardinale’s skin with my post on Monday, which quoted him calling Bergen County streams “drainage ditches” and saying that the DEP’s Category One stream water quality protection program was “scientifically unjustifiable” in Bergen County.

I got a lengthy email reply from Cardinale, in which he walked back the “drainage ditch” remark.

But, in walking back that comment, Cardinale may have gone from the frying pan into the fire.

Cardinale went slightly off the deep end, and expanded his attack on the DEP C1 program, essentially claiming that it caused flooding problems in Bergen County.

Of course, I could not let that stand and fired back – enjoy Cardinale’s email and my reply below:


From: “Sen. D.O. Cardinale” <SenCardinale@njleg.org>To: “Bill” <bill_wolfe@comcast.net>, sensmith@njleg.org, “Sen. D.O. Cardinale” <SenCardinale@njleg.org>, “Sen. D.O. Gordon” <SenGordon@njleg.org>Cc: “Kevil Duhon” <KDuhon@njleg.org>, “Sen. D.O. Gordon” <SenGordon@njleg.org>, “Sen. D.O. Greenstein” <SenGreenstein@njleg.org>, “Sen. D.O. Codey” <SenCodey@njleg.org>, “Edward Meakem” <edithkid@aol.com>, “Lisa Riggiola” <theccpl@yahoo.com>, “SEAN SULLIVAN” <ssullivan@njadvancemedia.com>,fallon@northjersey.como’neillj@northjersey.comtjohnson@njspotlight.com Sent: Tuesday, May 5, 2015 1:48:40 PM Subject: RE: stream de-snagging – S2677

Hi Bill,

It is a fact that the DEP makes very little distinction between trout streams and drainage ditches in Bergen county. I did not previously know who led the team responsible for the wholesale reclassification of Bergen’s streams 12 years ago but thanks for the confession.

Now that your prior actions are acknowledged perhaps you can specify how your “TEAM” came to do that project. Who ordered it? For each named stream what were the specific data used to derive your conclusion?

Did you do similar evaluations of all streams in NJ or did Bergen get special treatment. How many  streams in Bergen that your project reclassified as class 1 are dry for months at a time? What percentage of Bergen streams did you reclassify as 1. How does that compare with other counties? Do you  care about the misery you  cause to my flooded out constituents or is your authority a higher priority. Have you bothered to visit places like Oakland after a storm and observe what your denial of remedial proposals has wrought?

I do not believe that all NJ streams are drainage ditches. Many of them are and the DEP treats them the same as pristine waterways in many instances. In my opinion that is not in the public interest. Waterways that dry up for significant periods each year are of different environmental value than those which are spring fed and flow constantly. The former are drainage ditches in my opinion but there is a penchant for control and for saying no in the DEP which in my view has caused an unnecessarily complex process with how we handle the problems these waterways present. Unnecessary complexity costs money which is in short supply.

Our attempts to simplify the regulatory process are not academic. Many of our constituents experience flooding and many local officials have been denied permits for flood control efforts or have been subjected to an overly costly process to obtain permits. I have been to flood sites and heard the complaints of local officials with respect to the DEP. The DEP has become an obstacle to common sense solutions. We Senators seek to convert the DEP, to make it a partner in alleviation of our constituents real problems.

Unfortunately there is a culture in the department which we must overcome in this process and your email points that out in spades.

If you had been paying close attention at the meeting you would have heard me say that the passage of our bill will not remove regulatory oversight from these projects. The DEP will still be notified before work is undertaken and will have an opportunity to stay the process but will then be obligated to say why and to help improve the proposal so it passes muster. That seems to me what a public agency should be all about. But it is not so easy to change old habits.

Sen. Cardinale

Here’s my immediate reply


From: “Bill” <bill_wolfe@comcast.net>
To: “Sen. D.O. Cardinale” <SenCardinale@njleg.org>
Cc: sensmith@njleg.org, “Sen. D.O. Gordon” <SenGordon@njleg.org>, “Kevil Duhon” <KDuhon@njleg.org>, “Sen. D.O. Greenstein” <SenGreenstein@njleg.org>, “Sen. D.O. Codey” <SenCodey@njleg.org>, “Edward Meakem” <edithkid@aol.com>, “Lisa Riggiola” <theccpl@yahoo.com>, “SEAN SULLIVAN” <ssullivan@njadvancemedia.com>, fallon@northjersey.com, o’neillj@northjersey.com, tjohnson@njspotlight.com
Sent: Tuesday, May 5, 2015 3:10:00 PM
Subject: Re: stream de-snagging – S2677

Senator – thank you for such a thoughtful and timely reply.

I’ll ignore the attacks and the rhetoric and try to respond to your questions with the policy and regulatory history.

1. For a discussion of the history and basis and background of the expansion of the C1 program during the McGreevey Administration, please refer to the DEP’s November 2012 Report I provided in my prior email.

Please be advised that although Governor McGreevey set the overall policy direction to enhance DEP water resource protections, that the science and regulatory basis for the Category One program was developed by DEP career professionals.

2. For technical basis for the  Bergen County specific C1 designations regulatory proposals, see:

Oradell Reservoir (11/18/02)

http://www.state.nj.us/dep/wms/bwqsa/docs/7-9Bprop2002.pdf

Pascak Brook (11/3/03)

http://www.state.nj.us/dep/wms/bwqsa/docs/rnd2C1proposal.pdf

Hackensack River (11/3/03)

http://www.state.nj.us/dep/wms/bwqsa/docs/rnd2C1proposal.pdf

Saddle River (portion – 9/19/05)

http://www.nj.gov/dep/rules/proposals/091905a.pdf

3. Subsequent amendments to the Stormwater Management rules (NJAC 7:8-5.5(h)) established “special water resource protection areas” (AKA 300 foot buffers) around C1 waters, see:

http://www.nj.gov/dep/rules/rules/njac7_8.pdf

4. As you may know, the Category One stream program’s antidegradation policy and protected buffers were a significant basis for the Highlands Water Protection and Planning Act, which Im proud to have authored portions of as well, P.L. 2004, c. 120.

5. During the Corzine Administration, subsequent amendments to the Stream Encroachment rules incorporated the C1 buffers (see: NJAC 7:13

http://www.nj.gov/dep/rules/rules/njac7_13.pdf

6. Regarding flood control issues, although the C1 steam buffers were designed primarily as a water quality tool, by limiting development and disturbance of vegetated buffers, the C1 program provides flood control protections as well, as recognized in the Flood Hazard Act (stream encroachment) rules

7. Regarding flood risks, I think you confuse the cause of flooding in Bergen County – which is extensive overdevelopment and high rates of impervious surfaces – with the DEP measures to reduce those risks.

In closing, I plead guilty to nothing.

I am proud of these accomplishments and my opportunity to serve the public interest.

Bill Wolfe

 

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Bridgegate Was Not An Isolated Incident, But Part of A Corrupt Political Strategy That Drove The Christie Government

May 5th, 2015 No comments

Wildstein Exposed the Inner Workings of the Corrupt Christie Machine

Abuse of power was not the result of young, inexperienced, retaliatory rogues

 Bridgegate was not a bug, it was a feature

Christie institutionalized the pay-to-play patronage politics previous Governors engaged in on an ad hoc basis

We do not live in a democracy. We live in a political system that has legalized bribery, exclusively serves corporate power and is awash in propaganda and lies. ~~~ Chris Hedges (5/4/15)

[Updates below]

In the Wildstein guilty plea and Baroni/Kelly indictment media frenzy, the media narrative has fallen into the same narrow trap as the initial coverage of the original Bridegate scandal.

I had hoped that the Mastro Report interviews and the Legislative testimony – particularly of Christina Renna, Bridgette Kelly’s replacement at the Office of Intergovernmental Affairs (IGA) who laid out the role of IGA as the bridge between the Christie re-election campaign and the Christie government – coupled with the Port Authority finance and Samson scandals –  would have made the broader meaning of the Bridgegate scandal obvious to our media mavens.

Apparently not.

So, let’s not kid ourselves and engage in revisionism.

We all knew – and had plenty of supporting information – that Christie was a political thug.

And we knew that long BEFORE he even RAN for Gov. in 2009.

For some reason, the NJ press corps never wrote that story. No intestinal fortitude.

It took the national press corps to connect the dots and weave a coherent narrative of just how corrupt Christie is as a human being, see The National Review’s killer story:

Long before Christie was Governor, we knew he was a thug.

Bridgegate is part of of the politics and character flaws of Christie.

  • The Real scandal

Last week, a NY Times story  ”U.S. Indictment Details Plotting in New Jersey Bridge Scandal“ opened the door to the broader scandal and real meaning of Bridgegate.

But, after the Times hinted at the broader implications, that angle was immediately shut down by claiming that the scandal was a result of an operation run by young kids out of IGA:

Mr. Christie’s strategists were hoping to use his 2013 re-election campaign to build a case for him to run for president. Their goal was to secure endorsements from a broad spectrum of officials, including Democrats such as Mayor Sokolich.

This cultivating fell mostly to young staff members in the wing of Mr. Christie’s front office known as Intergovernmental Affairs. 

Carl Golden, columnist at NJ Spotlight shares that perspective that young inexperienced people abuse power. Golden concludes:

Inexperienced people like Kelly were unaccustomed to handling the power suddenly found in their hands and it controlled them rather than the reverse. Bridgegate — or something similar — was the inevitable result of such an environment.

Astute and well written, but just flat out wrong.

[These were not inexperienced kids, they were political operatives. Kelly and Wildstein were over 40 years old. Baroni was a former State Senator.

People forget that during his legislative testimony (the traffic study cover story), Baroni had Easy Pass & Census data on GWB use, by legislative district of members of the Committee, a repose of his attack on Senator Lautengerg, where he had data on GWB use. This was not some amateur rogue Op. Stepien ran a sophisticated political operation.]

Bridgegate was not an “inevitable result” of giving power to young inexperienced people.

And it was not the result of creating some kind of “cultural climate” where retaliation is rewarded.  Again, Mr. Golden:

Fishman’s findings also renewed criticism of the Christie Administration as a cultural den of political intrigue where retribution against enemies — real or perceived — was encouraged and celebrated. Abusing governmental power and authority was business as usual because, critics claim, the governor had created an atmosphere in which opponents of his politics and his policies were fair game, targets to be punished.

And we agree with Ms. Kelly – Bridgegate is not about weepy women, working mothers, or other individual psycho-drama either. It’s not about “low life sociopaths” as Salon would lead us to believe.

Bridgegate is completely consistent with all we know about Chris Christie.

So, let me be clear: Bridgegate was not some isolated event.

David Wildstein exposed the inner workings of the Christie Political Machine. It was strategic, systemic, and well organized, not a single event driven by flawed individuals.

Christie institutionalized the pay to play patronage politics previous Governor’s engaged in on a case – by – case basis. He obliterated the distinction and lines between the political campaign and governing. He put a political campaign inside government and used government as his own political machine.

  • We’ve seen all this before – Nixon redux

There are echoes of Nixon’s Committee to Re-Elect The President (CREEP).  It was all about political power.

The Christie team was not some young, inexperienced, emotionally driven, mean spirited band of rogues. No “motley crew”.

And Bridgegate was not an anomaly. As the techies say, it was not a bug, it was a feature.

The Christie team created a powerful strategy to integrate politics and campaign field operations in the day to day function of state government. Every lever of state government – contracts, grants, permits, subsidies, and approvals – was coordinated with the campaign operation run by Stepien.

The meaning of Bridgegate is not as a simple retaliatory abuse of power by people too young and inexperienced to manage power – it was part of a sophisticated and coordinated strategy.

Just like the Watergate break in was not some rogue band of petty thieves. Just like Watergate, the bridge gate episode is the tip of a large iceberg.

Kelly’s Office of Intergovernmental Affairs was the functional equivalent of Nixon’s CREEP -

For just a taste of the many striking parallels between President Nixon’s CREEP and Gov. Christie’s IGA, check this excerpt out, from the official Nixon Library on the Administrative history of CREEP:

“Malek’s other task when made the head of the White House Personnel Operation was the “responsiveness program,” a way to gain political support for Nixon’s re-election by using federal resources and grants to influence key states and voting blocs, especially minority groups (the Senate Watergate Committee later investigated and censured this program). While still running the personnel operation, Malek played an active role in the Committee for the Re-Election of the President by applying the methods and information used in the “responsiveness program” to CRP programs.”

So, where are the next Woodward and Bernstein that can connect the many dots and break this story?

[One place to start would be how IGA set up a meeting with DEP and DCA Commissioners on permits for the Rockefeller development in Hoboken. Not only is it highly unusual to get the DEP Commissioner to attend a meeting on a storm water permit, Mowers from the political campaign was at that meeting. It also jibes with attorney Joe Marazitti's email about a "full court press" from Samson and Lori Grifa. A lot of high level moving parts integrated. That's no accident.]

[Update: 5/7/15NY Times reports on the Lt. Gov.’s alleged “clearance” from criminal investigation for her role in the Rockefeller/Mayor Zimmer threat – note how narrow the news coverage and criminal investigation appear to be – e.g. no linkage to Marazittie “full court press”, to IGA’s involvement, to Matt Mowers IGA/re-lection campaign involvement, to meeting with DEP Commissioner on permits, DCA permits, etc:

Ms. Zimmer first discussed the allegations on MSNBC in January 2014. She said Ms. Guadagno had told her that if she wanted Hurricane Sandymoney, she would have to approve a development proposed by the Rockefeller Group, and implied that the warning came from Mr. Christie himself.

Rockefeller was represented by David Samson, a lawyer and close confidant of the governor who, at the time, was the chairman of the Port Authority of New York and New Jersey.

Of course Mayor Zimmer’s account was true – Fishman just did a lousy job:

Ms. Zimmer said that while she respected the judgment of prosecutors and their conclusion, she stood by her account.

“What did she mean, ‘Play ball?’ ”she said in an interview on Saturday. “That means, ‘Do what I want her to do.’ I don’t think she was talking about playing a game of baseball.”

Ms. Zimmer also noted that reporters had given Mr. Fishman the chance to exonerate public officials at his news conference Friday, and that he had declined to do so.

“If they can’t prove it beyond a reasonable doubt, they’re not going to bring charges,” she said. “Not being charged and being exonerated, there’s a big difference.”

[Update #2 – 5/10/15 - Shawn Boberg at the Record ran a story today that made an explicit allusion to the Nixon Watergate experience with a focus on “unindicted co-conspirators”. I’m not sure if this is the first linkage, see:

It’s not the first time the term “unindicted co-conspirator” has added intrigue to a political scandal. The term is used to describe someone whom prosecutors have “probable cause” to believe was part of a conspiracy but whom they declined to charge.

President Richard Nixon was tagged with that label in the Watergate investigation when seven administration officials were indicted by a grand jury in 1974. Prosecutors investigating the Whitewater controversy in Arkansas in the mid-1990s described a White House deputy counsel under President Bill Clinton that way.

A few observations:

1) I hope the Record is not waiting until the trial to disclose the names and roles of the unindicted co-conspirators. As suggested above, this is a far broader conspiracy than just Bridgegate – so they need to expands the scope of the story and start connecting the conspiracy dots – many of which are stories the Record already broke.

2)  I got a kick out of this reason for withholding identities:

“There are cases where witnesses and unindicted co-conspirators should be kept secret until the last moment, such as organized crime or gang cases,”when individuals’ safety may be at risk if they are exposed, said Koenig, the former federal prosecutor. “Generally, defendants should not have to guess or speculate what the evidence is or who the witnesses against them are, or who the unindicted co-conspirators are.”

I don’t want to get too tin foil hat here, but considering that Wildstein signed a plea deal back in January, it is not outside the realm of possibility that John Sheridan’s death could have been intended to send a message to Wildstein and other  Bridgegate conspirators.

Who knows, the Christie Mob may have created the stress that led to Wildstein losing all that weight.

3)  There are viable State law violations and prosecutions that are not being covered by the press, particularly this State law, which Wildstein’s plea seems to prove. Misconduct based on the purpose to injure prong is a second degree offense that comes with a mandatory 5 year sentence:

OFFICIAL MISCONDUCT – NJSA 2C: 30-2

A public servant is guilty of official misconduct when, with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit:

  1. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner; or
  2. He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.
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