New Jersey Audubon Magazine
SUMMER 2001 EDITION
William R. Neil, Director of Conservation

March 10, 2001

Federal Horseshoe Crab Sanctuary Established

As reported by Jack Kaskey in The Press of Atlantic City on January 30, 2001, the federal marine sanctuary to protect horseshoe crabs was to extend for 1,500 square miles of federal waters off the mouth of Delaware Bay and was supposed to go in effect last October, but the final comments and legal reviews were never completed. And then the Bush Administration came into office vowing to review all the regulatory actions and Executive Orders of the outgoing administration. Fortunately, the old Commerce Secretary, Norman Mineta, is going to be President Bush's new Transportation Secretary, and former Delaware Governor Tom Carper is now Senator Carper, so there were key Washington folks whose hands were on the Sanctuary creation to make sure it didn't die. And so - behold, effective March 7, 2001 the crabs will be protected from harvesting in federal waters from south of Peck's Beach, NJ to just north of Ocean City, MD. It will be interesting to see what impact this action has on the overall coastal limit of 2.3 million crabs.

In a related matter, NJAS supported the proposed amendments to the state harvest of horseshoe crabs which appeared in the NJ Register February 5, 2001. Rich Kane, our Vice President for Conservation and Stewardship, presented testimony at the public hearing at Stockton College on February 20. The NJ quota for harvesting is 297,680 crabs - the estimated landings for 1999. Activity is limited to existing permit holders and in-season hand harvest with weekly reporting of the take. The Register proposal prohibited harvesting from beaches and waters in the back bay area near Thompson's Beach, Cumberland County, including two man-made ditches.

Supreme Court Narrows Federal Wetlands Protections

On January 9, 2001, the U.S. Supreme Court decided Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (ACOE) by a 5-4 vote - along exactly the same ideological fault lines that decided the November election. At issue was whether federal Clean Water Act (CWA) Section 404(a) permits to fill waters of the United States were proper for a solid waste disposal site proposed for an abandoned sand and gravel operation. The 533 acre site contains numerous ponds - but the court said no wetlands, which we find hard to believe because among the 121 bird species listed there are the second-largest breeding colony of Great Blue Herons in northeastern Illinois, Black-Crowned Night Herons, Wood Ducks, Northern and Louisiana waterthrush....

But the court's decision, which will affect isolated waters and wetlands not specifically named by Congressional amendments to the CWA, turned upon Congressional intent in the revisions to that act, and ACOE's regulations, in 1975-1977.

The majority opinion, delivered by Justice Rehnquist, stated that "where an administrative interpretation of a statute invokes the outer limits of Congress's power, we expect a clear indication that Congress intended that result." The outer limit here was reached when the majority felt the ACOE stretched the term "navigable waters" to cover isolated waters.

The minority opinion, stated by Justice Stevens in a 24 page dissent, says that the very actions of Congress in rejecting a House bill which essentially attempted in 1975 the same retraction of jurisdiction that the Court has now made law, proves that the majority's opinion does not accurately describe Congress's intent or actions.

However, if lay persons were to read these opinions, msot would be at a loss to determine who has the correct view on congressional intent. But this writer has a rule of thumb for grappling with these types of "historical" disputes. Which explanation gives you more information, answers all the other side's points, and presents a more comprehensive framework for interpretation? In this case it's the dissent, because the Senate and the conferees in Congress had to deal with the same issues themselves and left a clear and extensive written record. That's not always the case. Why one side of the court can find it in the written record and the other one can't we can't explain.

But this case is decided. What's the effect? One is that the Legislature of Wisconsin, which has a lot of isolated wetlands and waters (up to 4 million acres) is about to act to close the gap in ACOE regulations created by this decision. Other states around the nation are saying 30-70% of theirs could be unprotected, according to Defender's WILDLines of February 26th. So this case has had large ramifications already. In New Jersey, the impact should be limited to whatever wetlands/waters in the Hackensack Meadowlands fall into the gap. It should not be a large area, but we don't want to prejudge the issue.

Stay tuned for the Court's future consideration of a major wetlands-"takings" case involving 18 acres of oceanfront wetlands in Rhode Island, as outlined in the New York Times on February 27, 2001.

But all the environmental news from the top court is not bad. On February 27 the court unanimously rejected an American Trucking Association and Chamber of Commerce attack on the Environmental Protection Agency's (EPA) right to set air pollution standards, and to set them without requiring a cost-benefit analysis. At issue was whether the EPA exceeded powers delegated by Congress - much the same ground as the Solid Waste Agency case. This time the court supported EPA's powers, but sent an ozone regulation back for further modification, which is a troubling caveat to an otherwise sweeping win for the environmental cause. (New York Times, Feb. 28th, page 1) The very next day the Times reported that EPA Administrator Whitman had decided to uphold the new Clinton administration rules on diesel fuel and engines. So we're doing pretty well on air, not so well on wetlands.

Executive Orders, National Monuments and Cabinet Appointments

Whatever history judges President Clinton's final environmental legacy to be, the merits of his spate of National Monument designations, Executive Orders, and twilight regulatory proposals on a whole range of issues have been lost in the tawdry glare of his Executive Pardons.

We hope that President Bush weighs actions to overturn these initiatives very carefully. Among them was an Executive Order issued January 11, 2001 on the Responsibilities of Federal Agencies to Protect Migratory Birds. That order, among other things, directed "Each federal agency taking actions that have, or are likely to have, a measurable negative effect on migratory bird populations is directed to develop and implement, within 2 years, a Memorandum of Understanding (MOU) with the Fish and Wildlife Service that shall promote the conservation of migratory birds." The Service is to develop MOU's within 180 days. The MOU's in turn will lead to "protocols." So don't hold your breath on instant changes. But if done correctly, these procedures could offer more protection to habitats and birds from capricious actions of the Department of Defense, Transportation, Energy and so on.

Chief national worries are whether Congress will overturn the Forest Service's Roadless Forest Protection Rule via the obscure Small Business Regulatory Enforcement Fairness Act - deadline is May 12 - and only a majority vote is needed in each house, according to the National Audubon Society's Feb. 20th Advisory.

Meanwhile, over at the Natural Resources Defense Council's website (NRDC) (www.nrdc.org) the lead message is "hands of the Arctic Wildlife Refuge," and preventing new Environmental Protection Agency head Christine Whitman from backing out of a lawsuit settlement that requires EPA to review for safety a range of pesticides. We think the NRDC website is a pretty good way to track the new administration's actions on a variety of issues.

On Tuesday, January 30th, 2001, the United State Senate voted to confirm the controversial Gale Norton as Secretary of the Interior, 75-24. Both New Jersey's Senators, Robert Torricelli and Jon Corzine, voted against Ms. Norton. Governor Whitman was approved on the same day by a 99-0 vote for the top job at the EPA. The following day, Wednesday, February 1, the Senate voted to confirm John Ashcroft as Attorney General, by a much closer 58-42 count, with both NJ Senators voting against him. NJ Audubon opposed both Ms. Norton and Senator Ashcroft because of their poor environmental records. On Governor Whitman, we issued "Gale Warnings" on December 27, 2000, with an essay of that title, which questioned whether she was the right person for the job, and warning our national colleagues about her poor regulatory record on wetlands and water issues. On January 31, 2001, we issued another essay called "Witness to Whitman: Spectators Not Citizens," about our trip to Washington in mid January for her confirmation hearing, and which also mused about President Bush's Inaugural address.

These essays are available on our NJAS website (www.njaudubon.org) and also on Phil Reynolds's Garden State Environet Site under "Newsstand," then Newsletters, Green Gram. (www.gsenet.org) or you can call us at 908-766-6446 and ask for a hard copy. Our thanks to Phil for posting our essays and alerts, which have now replaced the Green Gram as the chief means of communicating policy positions to the Legislature and the public, and are available of course, upon request, to NJAS members.

Conservation and Reinvestment Act (CARA) Redux

CARA is back again after fizzling out in the Senate last fall, and passing the House in May by an overwhelming 315-102 vote. There are some differences from the bill we supported last year: total funding is slated for $3.1 billion, up from $2.8; endangered species protection funding is down to $50 million from $100; historic preservation funding is up $50 million to 150 million; refuge revenue sharing and Payments-In-Lieu of-Taxes is up $150 million to $350 million; of course, the Land and Water Conservation Fund is funded fully at $900 million per year, split evenly between federal and stateside programs which match federal contributions. Among the first co-sponsors of CARA is NJ Representative Jim Saxton (R, D-2) who has a close working relationship with the bill's prime mover, Rep. Don Young (R, AK).

We urge all friends of the Environment in New Jersey to pick up the phone, call the Congressional Switchboard at 202-224-3121, and let your representative and our two Senators know that you want Congress to complete the mission it fumbled away last year. You know the size of the proposed tax cut: over a trillion dollars; we're asking for a very small portion of that to put the "reality" in the protection of wildlife - reality where there's been largely rhetoric before.

STATE REPORT

NJ Audubon Legal Cases

Rattlesnake Case in Pinelands: As previously reported in these pages, NJ Audubon, Pinelands Preservation Alliance (PPA) and the Natural Resources Defense Council (NRDC) are intervenors/appellants in two cases involving a proposed development in Timber Rattlesnake habitat in Burlington County. The Pinelands Commission approved a settlement that would damage a significant population of the endangered snake in a documented critical habitat. As a result of this decision, Audubon and its co-intervenors have opposed a motion for summary judgement by the developer in Superior Court in Burlington County to dismiss our claim that the development would violate the Endangered and Nongame Species Conservation Act (ENSCA). The judge has postponed ruling in this matter until the second case, an appeal of the Pinelands Commission decision to allow the development, is decided in Superior Court, Appellate Division in Trenton. Should the Appellate Division rule in our favor, the ENSCA case would be moot. The appeal revolves around the regulation in the Pinelands Comprehensive Management Plan that allows no development in the habitat of a significant population of endangered and threatened species. In another action, the appellants motioned for a stay of any construction in the development until the Appellate Division rules.

Hamburg Mountain: NJ Audubon, together with the NJ Conservation Foundation, ANJEC, Sierra and Environmental Defense, has joined a suit against the town of Vernon and Mountain Creek Resort/Intrawest to stop a massive development of 1600 units and a golf course on deed restricted land on Hamburg Mountain. The case revolves around both the deed restriction for conservation and recreational use (natural areas, parks, wildlife, fishing, etc.), a condition of divestiture approved by the Statehouse Commission, as well as Vernon's own environmental subcode ordinance designed to protect the mountain resources of the town. The area is foraging habitat for the federally endangered Indiana bat and a number of state endangered and threatened species including Barred Owl, Red-shouldered Hawk and Goshawk, as well as home to exceptional wetlands and many Neotropical migrants. At this writing, it is unclear whether the sate will be a co-plaintiff. State Senator Walter Kavanaugh (R, D-16), a member of the Statehouse Commission at the time, has said that the land divestiture did not contemplate this sort of use.

Tower Cases: NJAS has opposed construction of communication towers at unsuitable locations in Pohatcong and Sparta. Both would impact wildlife and endangered and threatened species. Both were rejected by the respective towns on various grounds and both applicants have appealed the decisions. The Pohatcong cell tower was to be located next to the Alpha Grasslands, home to Vesper, Savannah and Grasshopper sparrows, in the most scenic area of the township, and one of the most scenic areas of the State. The gap in cell phone coverage was minor on Route 78. The Sparta TV tower (695 feet) was to be located in a state wildlife management area on a 24 year lease, which would avoid an environmental assessment, bad public policy to begin with. Towers like Sparta's, with red lights and guy wires, especially over 500 feet, have experienced documented killings of disoriented nocturnal migrants, especially Neotropicals. The Sparta tower, if built, would threaten some state endangered and threatened migrants, as it would be the highest point in the state, on top of a high Highlands ridge near Mahlon Dickerson Reservation. The appeal of the Sparta tower decision was to be heard in Morristown in March of 2001. Activist note: for future fights and citizen activists tuning in, our sense of the current legal reasoning is that a municipality has the right to site towers where they think best, and perhaps within a reasonable coverage framework, but not ban them entirely. More legally uncertain is whether a municipality can ban them entirely if they are all Planning Area 5, for example, or the company proposing them is a new entrant and the area is already covered by rivals. Based on what we heard at the Pohantcong hearing, New Jersey could be covered by hundreds of cell towers before this technological cycle has run its course and, of course, been made obsolete.
Rich Kane, V.P. for Conservation and Stewardship

The Future of Liberty State Park's Interior

An estimated 600 or more citizens turned out on Saturday, January 27, 2001 for a NJ Dept. of Environmental Protection (NJDEP) hearing on the future of the interior of Liberty State Park, held at the theatre of the Liberty Science Center. NJAS staff, board and members were among the hundreds in attendance. The hearing was triggered by a NJDEP committee process (over NJAS protests) which allowed a commercial waterpark option back out on a policy table we thought had been already cleared and restricted to a quiet recreational and environmentally secure green park. Prominent among the early promoters of the commercial waterpark proposal were Jersey City Mayor and gubernatorial hopeful Bret Schundler and Liberty State Park Development Corporation head Peter Ylvisaker. Mayor Schundler, who seems to have badly misread the mood of his hometown base, conceded his proposal's defeat well before the public hearing - but had to endure hearty booing from the ever vocal Jersey City residents, residents who have become very protective of the great potential of their beloved Liberty State Park. We would say that opponents of the waterpark outnumbered supporters by about 3-1. Some of the loudest cheers were reserved for calls for the abolition of the Development Corporation. NJAS was particularly moved by the standing ovation given to Sam Pesin, President of Friends of Liberty State Park, who delivered the speech of his life to defend the "free and green" park - a park whose genesis lay in the vision of Sam's father, Morris Pesin.

DEP Assistant Commissioner Cari Wild admitted, in her opening remarks, that there had been an overwhelming citizen response to the proposal, and we think that response is consistent with the hearing turnout. There will be another hearing on the final, proposed synthesis plan, probably this summer, and NJ Audubon's call for an international design competition has won the committee's support and was publicly endorsed by some political leaders of Hudson County at the public hearing, most prominently by former NJ Assembly Speaker Joseph Doria (D, D-31).

We only wish that the state-wide environmental community could come together to fight for a State Plan with teeth with just a quarter of the spirit, energy and vision that the Jersey City folks have displayed time and time again in defense of their urban oasis. In a political world where environmentalists seem to have been outflanked by big money and the subtle straight-jackets of non-profit politics, and are taken for granted and easily managed by both major parties, it's nice for once to see the power of direct, outspoken democracy deliver a message: face-to-face, on stage, prime time. When we dare again to dream of an truly environmentally invigorated citizenry, and fully democratic institutions, we will have in mind the two animated, out-spoken public hearings in Jersey City that have helped saved this wonderful park from a commercial golf and water park.

Final Draft Version of the State Plan, 2001

Does the policy world contain a greater contrast than that between the energized, vocal, spontaneously creative sparkle of a Jersey City public hearing, a veritable political Ebbets Field, and the leaden, constipated atmosphere of pulled policy punches and canned newscast cheer of State Planning Commission meetings and hearings, such as was on display on March 1, 2001, in the War Memorial Building in Trenton? Why is it that we can't but help recall the immortal lines from young Huck Finn every time we have to endure such polite oppression: "'I reckon I got to light out for the territory ahead of the rest, because Aunt Sally she's going to adopt me and sivilize me, and I can't stand it. I been there before.'"

If we could air full-length split-screen re-runs of the two for the citizens of the state they would can the State Planning Commission and all its work in the blink of an eye. Or light out for the territory with Huck and Jim. (But it's true, we are at least partly civilized here at NJAS, because we did spend the time in May of 2000 to draft a detailed outline of Legislation that would put some policy life, and teeth, in the State Plan to at least protect Planning Areas 4-5, the rural parts of the State, and properly remap PA's 2-3.)

Unfortunately, we don't have the means today to put such a piece of political art together for you, so you'll have to be content with two essays we presented to "celebrate" this latest version of "warmed up leftovers." For the "latest" version of the State Plan does no more than the earlier futile ones to advance its own first objectives - revitalizing our cities and saving the state's remaining natural resources. We handed out more than 200 copies of our essays upon the occasion of the adoption of the latest plan on March 1st, and you have your choice of the George Orwell version (Homage to Leftovers) or the Titanic version ("Titanic" Traffic Jams and the State Plan: the Conservation Response. They are available, of course, on our NJAS website at www.njaudubon.org . Or call us at 908-766-6446 for a hard copy. Below, excerpts from our introduction to "Homage to Leftovers:"