NJAS Opinion: Summer, 1992

As we look out on the decade of the nineties, some very tough issues face the environmental community in New Jersey and elsewhere. Probably the biggest issue, and the one controlling the others, is the fear of "taking" lawsuits in the hearts of regulators, commissions, planning boards, and wetland advocates. This arises when laws, rules, or zoning restrict the kind or amount of development on a property. The Fifth Amendment to the Constitution, which protects citizens against being deprived of life, liberty, or property without due process, was aimed at the ownership of property, and with good reason; our forefathers had experienced confiscation of property and the Fifth Amendment was our protection against unjust seizure of lands without compensation. The Constitution clearly guarantees the right to ownership, the right to compensation if land is taken by eminent domain, and, according to the courts, the right to an economically viable use of that land. It doesn't guarantee the right to maximum profit, nor does it eliminate the responsibility for good stewardship.

The Constitution does not deny governments the power to regulate land use in the public interest, i.e., to restrict filling of wetlands because they have public values. If I own a wetland, I am not entitled to compensation because it has an endangered species or has a flood control function and I can't pave it. I clearly have a responsibility as steward of that wetland to protect it. Ownership is a responsibility as well as a right. The court has not said yet how far the government can go in restricting an owner's use; such a decision may come in this decade.

The other big issues for the nineties are clearly affected by the threat of "taking" suits. For example, the cumulative impacts of development should be taken into account when a particular project comes up for permit approval. While the development in itself may have a small impact, when it is combined with a number of others (e.g., seventy units upstream of a wetland), it may have secondary effects on habitat, wildlife, or water quality that are detrimental and irreversible. The fear of "taking" lawsuits can have an impact on the permit decisions in these cases. When we look at the denial rate in some of the permit programs, we see that it is very low, about 4 percent of CAFRA projects in New Jersey's coastal zone, and 1 percent or less for army corps permits to fill wetlands. Clearly we have to do better than that to protect water, wetlands, wildlife, and habitat in the public interest.

Another big issue we face in the nineties is the regulatory gap which prevents effective conservation of natural resources dear to New Jersey Audubon and important for the well-being of the planet. There is a serious regulatory deficit in stream corridor protection, specifically the forests which line stream corridors and are so important to migratory birds, water quality, and maintenance of downstream habitats. Many of these sensitive habitats need buffers. While wetlands have a measure of protection, forests have none. With their air and water quality contribution, with their extensive habitats for Neotropical birds, and their recreational benefits, forests need conservation zoning, especially contiguous forest. Another weakness is that, despite our species laws like the Endangered Species Act, we have no critical habitat law which could protect, for their biodiversity, valuable habitats that harbor good populations of common species. All of these relate directly to NJAS interests, and we will need to develop and hone the tools to close these gaps.

The other problem we face in the nineties is an all-out political assault on conservation in the current climate of fear and economic hard times. The tactics being used to power this effort at deregulation are multiple. The first is to blame economic woes on environmental regulation; thus the effort to water down the wetlands manual and demand compensation for a "taking" when a wetland is classified as superior. Surely there are a few other things that drove the economy down. How about bad bank loans that caused bank failures? How about overbuilding? How about 30 percent vacancy rates? How about the fallacy of the ratables chase? Another tactic is using the manifest need for affordable housing as an excuse to undo by administrative procedure what was won by legislation in the area of environmental protection, while blaming the NIMBYS for it. The majority who want conservation are not NIMBYS. Note that the best hope for affordable housing (real affordable housing, not token) is near infrastructure and transportation, and that can be best accomplished by conservation zoning and transfer of development rights initiatives. A similar ploy is to blame the loss of jobs on endangered species. Think about it - what will eliminate jobs, the spotted owls, or cutting all the trees down?

We need to go on the offensive. We need a good, strong, philosophically sound advocacy movement for regional planning and regulation, with tools developed to meet the needs for resource protection in our small but beautiful state. We'll have more to say about each of these issues in these pages and elsewhere as we move through the year and the decade. Stay tuned.

Richard Kane
Director of Conservation