New Jersey Audubon Magazine
WINTER 2000-2001 EDITION

Bill Neil, Director of Conservation

On July 25, 2000, by a 13-7 vote, the Conservation and Reinvestment Act (CARA), H.R. 701, was passed out of the Senate Energy and Environment Committee. The House of Representatives had passed a similar bill in May by a whopping 315-102 vote.

This bill is bound to be one of the most significant pieces of environmental legislation of the last quarter of the twentieth century, and is especially important for NJ Audubon’s desire to see increased funding for non-game wildlife before they end up on the "threatened and endangered lists." For New Jersey, the bill could mean as much as $55 million dollars in annual funding, far surpassing the amounts and purposes of the comparative trickle received under past Land and Water Conservation Fund (LWCF) efforts, where a good year typically came in at between $2-4 million, split among our different federal refuges.

At the national level, CARA would distribute about $40 billion dollars over the next 15 years and its crowning achievement would be the full funding of the LWCF at $900 million, equally split between federal and stateside funding. NJAS likes most of the changes made by the Senate as compared to the House version, especially the limitation on how much money can be spent on coastal infrastructure. That was always seen as the price of "pork" necessary to get key southern and western oil and gas coastal states to play along – now the pork has been greatly pared down and coastal conservation funding increased. And the coastal areas that have seen a lot of resource extraction, like Louisiana, can certainly use a lot of research and restoration dollars.

As we write in early September, conservationists are pressing the Senate Republican leadership to post the bill for a vote in the narrow window of 30 working days between Labor Day and adjournment for the fall election. Since there are differences between the Senate and House versions, there is still reconciliation work to be done. But first comes the Senate floor vote.

We doubt the economic climate could ever be much better for passage of such a bill – and the political climate is good because of the election year – and a Congress short on environmental accomplishments. We will be working hard this fall to see that we don’t blow it – but if it shouldn’t happen, it won’t be because of the New Jersey delegation, who have been super on this issue – on both sides of the aisle.

UPDATE AND ALERT:WHAT YOU CAN DO: Please call Senate Majority Leader Trent Lott at 202-224-6253 and tell him to post CARA for a vote, then Tom Daschle at 202-224-2321 – tell them all conservation eyes are on them, and there never will be an opportunity like this.

Acting with surprising speed, federal Department of Commerce Secretary Norman Mineta announced plans on August 8, 2000, to set up a 1,800 square mile sanctuary extending from Delaware Bay well out into the Atlantic to protect the horseshoe crab in federal jurisdiction waters. This represents an area 30 miles by 60 miles radiating out from the mouth of Delaware Bay, or more than a million acres of ocean, about the size of the New Jersey Pinelands.

Secretary Mineta also laid down the federal law to the renegade state of Virginia, which has been flouting the Atlantic Marine State Fisheries Commission quota reduction, which all the other states are abiding by. Virginia must comply with the reduced crab harvesting levels set by the Commission or be shut down by federal court order by October, which is when the Marine sanctuary is set to kick in. Some close to the politics of Virginia say that Governor Gilmore takes special delight in defying federal regulations because he is marketing himself to portions of the political spectrum outside of Virginia where such resistance plays very well.

The announcements came at a press conference in Lewes, Delaware. We hope they help restore the crab numbers that formerly used our New Jersey bayshore beaches and which are crucial for the survival of migrating shore birds, especially the red knot. We still worry that the Commission’s overall Atlantic quota of more than 2 million crabs is way too high for the very uncertain population information we have, and that’s why we’re also supporting a proposal by Defenders of Wildlife to impose an even larger sanctuary. Still, the Commerce Department’s proposal represents growing recognition of the importance of the crabs and the birds that depend on their eggs, and the proper sense of outrage at Virginia’s obstinate defense of narrow economic interests.

The Saturday, August 19, 2000 edition of the New York Times contained a front-page story entitled "Ages-Old Icecap at North Pole is Now Liquid, Scientists Find," (by John Noble Wilford, cont. on page 13). We think this is so remarkable, and portentous, for the weather, the future ranges of birds and wildlife, and the safety of humans in coastal locations, that we thought it deserved your attention, the story having appeared at the peak of the vacation season. We quote from the opening two paragraphs:

The North Pole is melting.

The thick ice that has for ages covered the Arctic Ocean at the pole has turned to water, recent visitors there reported yesterday. At least for the time being, an ice-free patch of ocean about a mile wide has opened at he very top of the world, something that has presumably never before been seen by humans and is more evidence that global warming may be real and already affecting climate.

The last time scientists can be certain the pole was awash in water was more than 50 million years ago.

The discovery was made by Dr. James McCarthy of Harvard’s Museum of Comparative Zoology, who was co-leader of a working group on Climate Change sponsored by the United Nations. The article also mentions that ivory gulls were seen at the pole, the first time ever.

This is the type of hard evidence that we think will grab people’s attention, where swings of ½ degree over half a century won’t. We don’t know what you do with articles like this, but we’re going to file our copy in the "prophetic" file, where it will sit to see if it remains as significant in five years as we think it is today.

Our Fall issue gave you only a first impression of more than 200 pages of wastewater planning rules which had been just handed out by the NJ Department of Environmental Protection (NJDEP) at the beginning of June. Governor Whitman raised the stakes herself when she gave short notice for a speech at the Woodrow Wilson School on April 27, 2000, on how the rules would "reign in" suburban sprawl. The rules themselves were not handed out until June 6^th, with three public hearing held in July and August.

The rules were potentially very important to habitat conservation issues, especially for the rural parts of the state, because they had the potential to limit the infrastructure that is needed by most large scale developments, and also to change the standards for septic systems – which is the most common "infrastructure" for the type of $350,000- $500,000 home residential building we’re seeing all over rural Hunterdon and Warren Counties.

But all the public got in these lengthy rules, and after more than four years of stakeholder meetings, is the status-quo, with the builders having to do more "studies," but with no new firm legal basis to change how much gets built and where. These rules have little to do with good planning, because good planning makes clear to all parties what you can and can’t do - and where. Yet party after party testified at the public hearings that after two months of reading the rules, they still couldn’t decipher their structure or tell their constituents what to expect. Many said the rules leave NJDEP with an enormous degree of discretion in deciding who can build and where, yet the rule is lacking in new or clear standards. We agree, and did a deeper diagnosis in our nine pages of comments dated July 18, 2000. (Call us at 908-766-6446 if you would like a copy.) Here is a sample:

The rule ultimately fails, as the State Plan has before it, because of a lack of clear and enforceable standards and grounding in focused legislation. At the heart of the rule’s murkiness, and this is what has crippled the State Plan, is the failure to come to grips with land-use densities, which are now, and remain despite this rule, firmly in the hands of local governments. The rural building densities allowed under municipal zoning represent a clear threat to the biological integrity of our best rural lands – and our most pristine waters. Whether these local densities are consistent with the intent of the Clean Water Act and the NJ water laws cited above, and the goals of the State Plan, is one of the core dilemmas that the Whitman Administration keeps evading

 

UPDATE AND ALERT: WHAT YOU CAN DO: The formal comment period on the rule has been extended to October 3^rd. The message from those concerned about protecting habitat, especially in rural NJ is that these rules won’t do because they did not upgrade rural water designations or change surface and ground water discharge standards. Studies without standards don’t work. No sprawl control in there; Pull the rules and rewrite them. Call or write Governor Whitman at 609-292-6000; The Statehouse, CN-001, Trenton, NJ 08625. Call DEP Commissioner Bob Shinn at 609-292-2885 or Email him at rshinn@dep.state.nj.us . If you want to go the whole mile with us, then send even just a brief negative sentence or two to the formal legal collector of comments: Gary J. Brower, Esq. Attn. DEP Docket No. 20-00-06/62, Office of Legal Affairs, NJ DEP, P.O. Box 402 Trenton, NJ 08625-0402.

The Whitman Administration has published revisions to New Jersey’s Freshwater Wetlands Protection Act regulations in the August 7, 2000 edition of the New Jersey Register. This represents their second attempt to make changes in the 150 pages of existing rules. Their previous effort in late 1996-early 1997 was strongly criticized by environmental groups, including NJ Audubon. The current proposal, while not as bad as the first, still leaves a lot to be desired given the historical situation in New Jersey, which has suffered tremendous wetland losses before our tough coastal and freshwater wetland laws were enacted in 1970 and 1987, respectively.

The new rules, whose electronic version stretched to more than 450 pages, constantly reiterate that the language is changing to make the rules more readable and logical for users, but we didn’t have much of a problem with the original 150 page version, which everyone was familiar with. It certainly was not the environmental community clamoring for these extensive revisions. The exhaustive justification language for the new rules and the overall length of the text place them out of reach for the average interested citizen. And despite their great length, they fail to inform the public just what the track record of losses has been in a program more than a decade old. This despite the fact that two Department documents, one issued in the summer of 1996 and the other in February, 1999, show cumulative losses from our system of general permits of about 1,000 acres. But the rule does not refer to either of these compilations in its extensive text or in the additional environmental analyses that must accompany the six new proposed general permits.

When NJAS attended a late summer workshop, we asked about statistics on the number of acres mitigated and the success/failure rate since the passage of the law. We received no clear answer, but were told that a grant had given the Department money to assess 100 examples of previous mitigation. This is rather evasive, in our opinion, since we asked for some statistical framework way back in 1996. The Department is extensively revising the format and language of the mitigation section of the rules, and moving forward with the implementation of mitigation "banking," where wetlands are enhanced or created in advance of future losses, and developers may purchase "credits" from the bank to make up for wetlands they alter or destroy. NJ Audubon and the conservation community nationwide have been very critical and cautious about endorsing the concept of mitigation banking because the track record on creating wetlands has left a lot to be desired. NJAS also feels that having a bank of mitigated wetlands ready in advance of future wetland losses may make permit approvals even easier, even though permitting and mitigation are to be separate processes under our law.

Of the six new proposed general permits, NJAS strongly opposes four and is neutral to skeptical on the other two. We feel that a Department that has seen its wetlands review staff shrink from 65 to 47 since 1992 has an added incentive to push general permits, which receive less scrutiny than individual permits and are easier and cheaper and therefore sought by many in the regulated community. Despite having had many years to consider this new proposal, the Department has failed to give the public any idea of the scope, in terms of potential number of acres that could be lost or affected, for the landfill closure, airport sight line clearing, and redevelopment general permits. Our sense is that just from the number of landfills still needing to be closed and the number of existing airports, that hundreds of acres could be lost or altered by just these two proposals. They deserve individual, not general permits.

One clear environmental strengthening in the proposal is the recognition of the importance of vernal ponds, especially for frogs, toads and salamanders. However, after laying out the scientific basis on why these small and ephemeral water bodies deserve protection, they only receive it under the heading of General Permit #6, which covers wetlands that are not part of surface water tributaries.

On the whole then, the revisions to the wetland rules seem driven by the regulated parties’ needs and the Department’s desire to keep its staff cost and size down. The idea that we should track and limit cumulative losses in especially sensitive watersheds, like in Planning Area 5 under the State Plan, the Passaic River drainage or more broadly the NJ Highlands, is still missing.

Note: Please see Rich Kane’s Opinion piece this month on "phragmites," because these rules are going to increase the chances they can be filled in because they are now going to fit the definition of "degraded" wetlands.

UPDATE AND ALERT: WHAT YOU CAN DO: Call Governor Whitman at 609-292-6000 or write to her at The Statehouse, CN-001, Trenton, NJ 08625, and tell her these rules need to be pulled and drastically rewritten to be more protective of her wetlands. Conservation groups will be supplying the changes to Ray Cantor of DEP in late September. Also contact Bob Shinn, DEP Commissioner, at 609-292-2885 or Email him at rshinn@dep.state.nj.us. If you want to formally comment, even just a negative sentence or two, or more, write to Janis Hoagland, Attn. DEP Docket No. 23-00-07/172, Office of Legal Affairs, NJDEP, PO Box 402, Trenton, NJ 08625-0402.

We could add an additional ten pages to our Conservation Report were we to describe in even minimum detail all the other issues we’re working on. But for now, all we can do is supply you with a brief outline. That’s enough of a rejoinder, however, to Governor Whitman’s comment, in a summer Sunday New York Times’ New Jersey Section assessment of her administration, that conservationists "don’t know when they’ve won." ("Call it ‘Ayatollah’ or ‘Caesar,’, It’s the Imperial Governorship," by Laura Mansnerus, July 30, 2000, p.10)

In the Highlands, NJ Audubon has joined a lawsuit with other conservation groups to overturn a Vernon Township ordinance that would allow massive development on Hamburg Mountain in Sussex County, in violation of deed restrictions placed on that much fought-over Mountain, which the state conveyed to economic interests decades ago.

In West Milford Township, we have monitored and opposed a proposal for a huge outdoor Garden State Performing Arts Center-type development along Route 23 in on good, forested Highlands habitat. The land belongs to the City of Newark, and is watershed land under the protection of the state’s watershed moratorium. A decision by the NJ DEP is pending. We also worked on a dam removal proposal in West Milford that would have jeopardized bog turtle wetlands that have evolved over a century and a half because of the dam.

In Pohatcong Township we have opposed a cell tower being pushed by ATT and Sprint directly adjacent to the 450 acre Pohatcong Grassland site it took us 5 long years to save back in the 1990’s. We have also worked on the Windy Acres Development in Clinton Township, Hunterdon County.

In the Hackensack Meadowlands, we have supported the idea of a new National Wildlife Refuge and continue to oppose a 2.4 million square feet shopping mall proposal (Meadowland Mills) that would result in one of the largest wetland fills ever in the Northeast – and render the national Clean Water Act’s wetlands’ protections meaningless.

In the Pinelands, we continue to work on legislation that would authorize studies of the impact of water withdrawals there and from the Cape May peninsula. And we are extensively involved in a legal case with other conservation groups that concerns the protection of rattlesnakes and the integrity of Pinelands provisions for threatened and endangered species and the Commission’s right to "call up" development projects when new information comes to light.

Adjacent to Cheesequake State Park, in Sayreville, NJ, NJAS joined the NY/NJ Baykeeper and Congressman Frank Pallone (D, D-6) in alerting the NJDEP to fill placed and/or washed into the Cheesequake Marsh because of an adjacent development project.

And once again, at Liberty State Park, Jersey City, NJ Audubon is concerned about a proposal to convert part of the interior of the park, the scene of so many other developments schemes over the years, to a water theme park.

These are just the highlights. In between, the phone rarely stops ringing for long because so many citizens call who are fighting this development proposal or that, such as the one adjacent to Ken Lockwood Gorge in Lebanon Township. These calls come in, apparently, from additional citizens who just haven’t realized that they too, have "won."