WASHINGTON REPORT

Land and Water Fund Bills in Trouble

The best chance in a generation for passage of bills to achieve full funding for the Land and Water Conservation Fund, a priority here at NJAS ever since I arrived in 1989, is in serious trouble in Washington, DC. Neither of the key committees in the House or the Senate was able to produce reports before Congress left town in early August. That caught a lot of people by surprise. Despite the close cooperation across the partisan divides by Rep. Don Young (R, AK) and George Miller (D, CA) to meld the best features of their two bills (HR 701 - Young's, and HR 798 - Miller's) together, a process which is nearly mirrored on the Senate side, we understand that there are serious strains inside the Republican party that threaten the good progress made so far. The strains center around the commitment to permanent funding of the Land and Water Conservation Fund (LWCF) at the high levels - $900 million - authorized way back when the Fund was set up in 1964. Of course, Congress has almost never appropriated the funds authorized, so we feel we're just trying to get them to live up to old commitments. Now these bills are much more complex than just that prominent issue, because they also promise to make large sums available for coastal state purposes (good and bad) as well as generate millions of dollars for the state Fish and Wildlife agencies, and, we hope, for their non-game species that so often get shortchanged: non-game has 90% of the species, 10% of the funds. But the big obstacle seems once again to be inside the Republican right wing, which is bothered by more public ownership of land, especially federal ownership, and the fact that the LWCF might get locked in, Trust Fund style, cutting down the annual Congressional bargaining room.
One barometer of the Republican right are the faxes we receive, unsolicited, from a property rights group based in Texas, called the "Liberty Matters News Service." They display a rising curve of shrillness against the Republicans who are pushing these bills, Young and Murkowski. A language sampler: "Republicans don't deserve to be in power if they insist on participating in this wholesale sell out of America. They are only looking at the short term gain of money, power and bigger government. We cannot afford to let this pass in any form." (March 29,1999); "'The problem comes down to a fear of purchasing great amounts of land.' Young said he has enough support among Democrats to pass a bill now. But, 18 out of the 28 committee Republicans have problems with the bill and unless Young broadens support among them, the Republican leadership will not bring the bill to the floor." (August 9, 1999).
With the budget surplus piling up, and a desire to live down the bitter impeachment days through good public deeds, everyone thought that this would be a "piece of cake," with moderate Republicans and all the Democrats on board, and Young and Murkowski shaming the hard right by their willingness to go "green" (that is, get lots of money for their coastal states). But let's not forget that it's the right wing, not the moderates, that dominate the Republican party, and spending these sums on a permanent basis (despite the fact that they are willing seller programs) threatens key parts of their ideology. In an age that holds a deep suspicion for politics and ideas (other than market worshipping ones), it's all to easy to forget the deep ideological shoals which any major green legislation has to swim over.
The situation is serious, therefore, but not irretrievable. If you read this before October 15, 1999, we think it makes sense to focus New Jersey calls on the Republican leadership. Use the Capitol switchboard number of 202-224-3121 and ask to speak to the offices of Speaker Dennis Hastert (R, IL), Senate Majority Leader Trent Lott (R, MS), House Majority leader Dick Armey (R, TX), Senate Budget Committee Chairman Pete Domenici (R, NM) , and New Jersey's senior House Republican, Rep. Jim Saxton ( R, D-3; 202-225-4765). Tell them that it would be terrible to let this moment slip by, to pass up legislation that will rank right up next to the "landmark" Clean Water Act, Wilderness Act and Endangered Species Act in importance.

STATE REPORT

Cranberries:Campaign $$$ and US Fish and Wildlife Allegations

Round three of the attempt by Governor Whitman and NJ Department of Environmental Protection (DEP) Commissioner Robert Shinn to develop a General Permit for wetlands conversion for the cranberry industry led to a press conference and public hearing on July 6, 1999, in Trenton. The two previous attempts to allow the destruction of up to 300 acres of wetlands for monoculture cranberry bogs took place in 1996 and 1998, but were blocked by the US Environmental Protection Agency's (EPA) Region II office, headed by Regional Administrator Jeanne Fox. The USEPA is given veto power over general permits by the NJ Freshwater Wetland Protection Act (FWPA). The sites for the proposed bog expansions are in Burlington County, in the NJ Pinelands.
We had some strong hints as early as January, 1999, that the General Permit was going to get the final green light from EPA, with only minor changes from previous versions. So we spent the early winter doing some research on the history of campaign contributions from Ocean Spray, Inc., the cooperative to which most of the major New Jersey growers belong, as well as the contributions of some of the leading NJ growers.
At the public hearing on July 6, NJ Audubon, the NJ Chapter of the Sierra Club, and Common Cause, NJ, held a joint press conference to lay out and deplore the campaign contribution record. That record now shows total hard (to candidates) and soft money (to party PACs ) campaign giving to both parties in the 1990's of more than $1.3 million dollars, and soft money giving in the last election cycle (1998) of $273,600, enough to rank Ocean Spray 86th out of the top 500 corporate soft money givers. We wouldn't have called the public's attention to just average giving. Ocean Spray is giving out of proportion to their revenue size, since they're not in the Fortune 500 for revenue (not close). They gave more than Dow, Dupont, and General Motors, to give you added frame of reference. And in A.R DeMarco Enterprises, the grower operation headed by the former Burlington County Republican Chairman Garfield DeMarco, they have one of the stars of state-wide soft money contributions, $79,000 between 1993-97, ranking him second among state individual contributors, with all of it going to Republicans. We also noticed, at the federal level, that both the hard and soft money seemed to peak in years when Ocean Spray had permitting issues before the federal regulatory agencies: EPA and the Army Corps of Engineers. Here are some excerpts from our press release and testimony at the pubic hearing:

It is clear to us that the NJDEP and USEPA have chosen, at any number of key legal and policy crossroads, to apply the weakest and least expensive possible interpretation of law and regulation - a tremendous break for this industry, which is doing very well… we call attention to the story by Dunstan McNichol (The Record, Nov. 11, 1996, page. A-1) which documented the political ties of Commissioner Shinn to key cranberry growing families of Burlington County. We are disappointed in both NJDEP and USEPA for never requiring the growers to disclose the locations of their desired expansions over the past 5 years so that the public and the USFWS could fairly assess the potential damage - and the upland alternatives. And the public, how do they feel? As shown in the reproposal in this June's NJ Register, 93% of the 206 written respondents opposed the General Permit. So how can the permit be going forward, once again?…
Given the level of campaign contributions here, we don't feel like we have equal standing before the law …The federal agency heads are political appointees from the two parties, the same parties that are awash in Ocean spray donations. We make our legal and policy cases, offer sound alternatives, and get nowhere. We can't give the parties a penny. Ocean Spray is giving in $10,000-$15,000 bundles, many times every year. We think NJ citizens are smart enough to figure it out for themselves.

Our formal comments at the hearing and the speech we read there as well as the press conference, was called "Ten Years of Giving and Getting." Call us at 908-766-6446 if you would like a copy. Despite the fact that we are offering a constructive alternative - some limited expansion, not 300 acres, but under Individual Permits, not a FWPA-busting General Permit (ten times more generous than the other General Permits), we sensed that both state and federal agencies were plowing straight ahead.
But then came the August, 1999 thunderclap from the US Fish and Wildlife Service (NJ Field office, headed by Clifford Day), in the way of a report to Jeanne Fox of USEPA, summarizing their longstanding objections to the permit but also making and documenting new allegations which threaten to demolish two of the key NJDEP rationales for being so generous to the growers: the fact that the growers should continue their oligopoly to block new entrants because of their good "stewardship," and the proposition that the growers are sparing in their use of chemicals, so there are no downstream ecological impacts.
Citizens need to know that in a time of growing cynicism and apathy towards public policy and government, and we include environmental matters in those categories, that we have all witnessed a real act of courage in the publication of this Aug. 3rd report. It alleges that 7 different grower operations may have expanded their cranberry bogs without the proper permits, or exceeded the limits of existing ones. It also reveals that growers are using significantly more chemicals to protect their bogs, not less, through the 1990's. Give Fish and Wildlife a call if you would like a copy of their report - 609-646-9310.
Of course, when we read the report, and looked at the color aerial photographs of the alleged expansions, we were quick to send a letter to the Commissioner Shinn to find out what the DEP was doing about it. It turns out that they had sent a "Notice of violation" to A.R. DeMarco Enterprises, Inc. back in October, 1998, five months after a field inspection of the site in May of 1998. Just as we are writing in early September, the Department has formally charged DeMarco with filling 22 acres of forested wetlands. This is troubling enough, obviously, because of the scope of the violation - we don't hear of many 22 acre violations - but also because the DEP knew about it so early - well before the second round of public hearings in November of 1998. We have also learned that the DEP hasn't yet made field visits to all of the six other sites.
NJAS has also learned, from a ranking government official, that the industry may have expanded into 100 or more acres of blueberry fields between the late 1980's and the present. Reporters were pressing the DEP to confirm this early in September, but DEP was dodging the direct answer by saying that permits were not needed to expand into blueberry fields. But our source told us that there was a serious policy debate inside DEP as to whether some of the blueberry fields were wetlands. They apparently decided, rightly or wrongly, that they weren't going to need permits, but once again discussion of this expansion was absent from the five year public debate. If they didn't need wetland permits, it's proof of the charge that some of the growers can expand into uplands, not wetlands, as is done in Massachusetts; it is also relevant for the argument about the scope of the expansion the growers want.
NJAS will, along with the Sierra Club and the National Wildlife Federation as well as the Rutgers Environmental Law Clinic, take a good hard look at the possibility of filing a state law suit to block the scope and character of this wetlands General Permit. We have also asked US EPA Administrator Carol Browner to look into to the matter. Please feel free to call us to get a copy of the numerous letters and policy statements we have worked up on this sad policy matter.
September 21, 1999 update - A New York Times article dated Sept. 13, 1999 contains the revelation from Steven Lee, Pinelands Commissioner and cranberry grower "point man," that the growers have expanded by 400 acres in recent years, into uplands and blueberry fields. Thus, he trumps our source and demolishes the premises in the years long debate. We're outraged that the DEP would have kept this information from the public, especially in the NJ Register. Please see our email and sign on letter to Gov. Whitman, dated September 21, 1999.

Cape May Sewer Amendments (208 Plan)

It was only a brief, two page notice in the NJ Register of June 7, 1999, but oh what a ruckus has emerged. The notice alerted conservationists and citizens of Cape May that the County was going to amend its Water Quality Management Plan. The Plan, called a 208 Plan, was actually more than 100 pages long, and essentially gave everyone a window on what could be built in Cape May County through local zoning out to the year 2020, although the principle purpose of the document was to describe the sewer plant expansions and line extensions being proposed. Although the document was not notable for its overall clarity, occasionally it did drop its guard and lapse into candor about Cape May County's salt water intrusion problem, where drawdowns have, over the decades, resulted in the construction of NJ first desalinization plant, which came on line in 1998. NJAS did a little digging on who paid for this statewide first, which we view as the symbol of unsustainability and poor planning, and found out that $3.5 million of the nearly $5 million dollar initial cost came from the federal Department of Agriculture, of all places. With farmers bailing out in Cape May in recent years, that's a very unusual place to go for funds for desalinization. How come they didn't ask the National Association of Home Builders for a loan? Despite the documentation of Cape May County aquifer problems, and the implications for stream flows as the county continues to pump its sewage effluent from the interior of the peninsula well out into the Atlantic (to spare the bays and estuaries from the pollution threats), the proposal in the Register boldly announced that it was going to treat problems of water supply separately from the other issues in the amendments. Since the plan also failed to tell voters what the more than 100 miles of new sewer lines would cost (how about $1 million dollars a mile?), people were pretty worked up way down in quiet old Cape May. And rightly so.
After all, this plan was really a discussion of "build-out" - how much could be built through the year 2020, the planning horizon that goes with major amendments to Water Quality Plans. So it was a window into the land use "soul" of the county. Although it never really said so in words, there was a table that told folks that 51,000 additional housing units were possible in the county, some 150,000 people. Even though those figures included what could be built under the remaining plant capacity and not just through the new lines, it was apparently the first time citizens ever got a number on what could be built. It kept popping up in the public hearing on July 27, 1999, attended by hundreds, and in the numerous press accounts that followed.
NJ Audubon felt so strongly that this plan was the outline and prediction of the suburbanization of Cape May, perhaps our most environmentally sensitive county, of hemispheric significance and world wide renown as migratory bird habitat, that we hired an airplane to tow a sign over the beaches in August. The sign said, very simply: "Sewer Plan Ruins Cape - call Gov. 292-6000." Spokespeople for the Governor said it was entirely a local matter - the same line we heard on Hopewell, as if the NJ DEP had no say in the matter, and everything in the proposed plan was ok as far as state law and regulations were concerned. Of course, there was more to it than that. The Governor has to sign off on this 208 plans herself, is the legal authority, as well as DEP, and we had specifically asked the DEP not to put this plan out before the CAFRA (coastal rules ) were settled, as well as the long term revision of the wastewater rules, ones we've been working on since 1997.
It was gratifying to us to see the 6-1 or 7-1 turnout against this plan at the public hearing on July 27. We and the Sierra Club are taking a close look at possible legal action, along with the Rutgers Environmental Law Clinic and concerned citizens in Cape May County.
Please give us a call if you would like to seek our more detailed comments: 908-766-6446.

Coastal Regulations (CAFRA) and Legislation

The August 2, 1999 version of the New Jersey Register laid out the third version since 1997 of the proposed rules changes in NJ coastal law that are intended to carry out the Legislature's expressed wish in 1993 (from the CAFRA II legislation) to integrate the State Plan into these rules. But these are the weakest of the three rules as far as protecting sensitive inland coastal habitat, like the uplands in the Cape May peninsula in the "Sensitive" (PA-5) and "Rural" (PA-4) Planning Areas. In fact, the amount of paving allowed in the "Sensitive" area is 10 times weaker than the December, 1997 version that we saw. The DEP says 3% impervious surface cover equals one house per 7 acres - we say one per 3 - not good enough to prevent the fragmentation of habitat in the fields and forests. We want the DEP to go back to .3% cover. NJAS testified at the public hearing in Trenton on August 23rd, 1999, and listed five major points that we don't like about these rules. Too many centers (more than 96, 26 in Cape May County alone), at too high levels of paving (50-90% coverage). Some of the centers for growth overlap with the aquifer recharge areas in Cape May running north to south along Route 9. Because this is supposed to be the GIS (Geographical Information System) and data driven DEP under Commissioner Shinn, we wonder why they couldn't get their act together so that these rules protected the aquifers that the Cape May 208 plan said needed to be protected?
While doing our homework for the rules, which the Whitman Administration has been dragging their feet over ever since 1994 (American Littoral Society and Sierra Club took them to court over the delay), we discovered part of the existing coastal rules that say to us that the DEP should not have been approving CAFRA permits since the time salt water intrusion was documented in their aquifers. That goes at least 5 years back, some say more than two decades. We've gotten no acceptable answer as to why the rule wasn't applied.
But more than these rules has to be changed. The loophole in the CAFRA law was not closed in 1993, except very near the water. Than means no matter what the new rules say, a developer can build 24 or under residential units or 50 or under parking spaces and none of the rule standards apply. So we need to change them both. Reed Gusciora, (D, D-15) has once again stepped forward to sponsor legislation to close the loophole, while we continue to argue for stronger rules. In a very surprising late August editorial the Star Ledger, the state's largest newspaper, ran a scathing attack on the proposed rules and what needs to be done legislatively. We might have written it ourselves, because it makes all the major points in our two pages of testimony on the rules. Here are some excerpts from "A Sham attempt to stop Shore Sprawl (Sunday Star Ledger, August 29, 1999):"

The latest bogeyman in American politics is suburban sprawl…but no one in power really wants to do anything about it…limiting sprawl would ignite a political war, and no one in Trenton has the stomach for that. It would mean confronting the powerful building interests. It would mean telling people who own property that they can't build anything they please on it…Whitman's plan to buy up open space, while constructive, scratches at the surface of the sprawl problem… these regulations are a fraud. They won't limit sprawl. The phrase "too little too late" was made for a moment like this.
…If she wants to regain credibility as a warrior against sprawl, she must first ask the Legislature to close the loopholes and then direct her Department of Environmental Protection to reconsider the changes that Gormley (Senator William Gormley, R, D-2) pushed through. Whitman's moment on the environment was the publicity she got for her drive to buy open space. The question now is whether she has the backbone to make limiting sprawl her second major accomplishment.

In our comments, we said that what's missing is "Governor Whitman's leadership. She is AWOL." We also mused that it "would be nice if we had a Democratic Party to offer constructive alternatives. So much for the two party system. It looks like we have a one party state: the builder's state."
But we think we have some momentum on the issue. Call us to get a copy of our comments, just two pages, right to the point. Your comments opposing the rules can go to NJ DEP until October 1, 1999. We also think calls to Senate President Donald DiFrancesco (R, D-22) at 908-322-5500 and to Assemblyman Rich Bagger (R, D-22) at 908-232-3773 and Senator Bill Schulter (R, D-23) at 908-788-3800 asking them to close the CAFRA loophole by sponsoring a bill - are needed.

Governor Whitman's Open Space Plan

On Wednesday, June 30, 1999, Governor Christine Todd Whitman signed the bill known as the "Garden State Preservation Trust Act," that sets up the nine member trust and establishes the guidelines under which it will operate. We thank the Governor for creating this milestone in New Jersey Conservation history, the long sought stable source of funding for natural resource protection.

As our readers know, we had some concerns about the details of the legislation, but nonetheless supported its passage. The worst part of it for us is the green light to increase the prices of the Pineland Development Credits by seeking appraisals for them in Pinelands Growth zones as well as areas outside the Pinelands. The current price is around 12, 500 dollars. We think that the task of analyzing how well the Transfer of Development Rights (TDR) system is working inside the Pinelands (the system was supposed to have, by now, raised the price of the credits assigned to landowners through the action of market demand), should have been left to the Pinelands Commission. We have some clear ideas on how the reforms should proceed. Among other things, the system in this bill will mean more money for the wealthiest agriculture interests in the Pines, including the cranberry growers, and it means, in light of the mitigation system proposed inside their general permit, which is terrible already, that they will have to spend even less of their own money to make up for the destruction of publicly regulated wetlands.

We wish the 1,000,000 acre goal the Governor has set the speediest possible fulfillment. However, we have to note some rather strange omissions. In both Republican Cape May County and Bethlehem Township (in the Highlands, Hunterdon County) - each with some of the most valuable habitats left in New Jersey, the Governor's plan was not mentioned and had no seeming impact on two processes where it ought to, by logic, have significant bearing. In Cape May, we mean the 208 sewer plan amendments of this summer, which considered build-out to the year 2020.
Because the Governor's program is voluntary and depends on the whim of landowners, we have repeatedly warned the public not to expect too much in the way of sprawl control or predictability. But even factoring this obvious point in, did her plan have no impact on who will sell and where in Cape May - because there was no mention of any impact on the vast sewer plan laid out in the 100 page plus document, more than five years in the making? Not a word. Ditto for Bethlehem Township's Open Space Plan, which we extensively commented on in a ten page essay entitled "Goodbye Rural, Hello Bethle-Burbia," in June of 1999. That may be even sadder for Bethlehem than Cape May, because it's all Planning Area 4 and 5 - a beautiful and lush limestone agricultural valley and Musconetcong Mountain's forested slopes and ravines - and the real estate pressure shouldn't be as high way up in northern Hunterdon as in Cape May - or so we thought. Despite being in the making for several years, there was no evaluation in the township of how many land owners were willing sellers, not even an estimate, and no discussion of changing the zoning based on the nature of the response. That is our very factual basis for saying, when asked how will the Governor's program work - that we don't know, but that it's having no measurable impact for growth management now, even in places where her own party would be expected to make use of it, even if just for rhetorical purposes.

As we write in early September, the long awaited Chapter 8 of the wastewater rules - where and under what terms sewage treatment plants and lines can be built or expanded - have arrived. These rules, as much or more than the Governor's pace and luck under the Trust Fund, will determine whether New Jersey is able to maintain biological integrity for nature and sprawl control for its citizens. Our fear is, though, that we are headed, million acres or not, for the "motley" landscape, one where there are very few intact large rural areas for farms and nature, and the landscape is dotted, unpredictably and randomly, even in the most rural areas, with developments, oil, gas, and electric transmission lines …and communication towers, a landscape that represents neither biological, nor planning, nor aesthetic integrity, but rather the least costly forms of political compromise with the power of the builders. And that will be a truly bi-partisan legacy.