Opposition to proposed General Permit for the Cranberry Industry

November 19, 1998

New Jersey Audubon Society and the New Jersey Chapter of the Sierra Club held a press conference in Trenton on Monday, Nov. 16, 1998 to announce their opposition to a General Permit to allow the New Jersey cranberry growers to fill up to 300 acres of wetlands in the Pinelands over 5 years, up to 10 acres per grower per year. We believe the proposal is illegal under the Clean Water Act and our NJ Freshwater Wetlands Protection Act. In addition, the national market is glutted with a 2,000,000 barrel surplus and NJ had a near record harvest this year. As far as we know, Ocean Spray, the industry leader, is doing very well financially and is busy creating demand for products which are in oversupply.

We also asked the Attorney General and Governor Whitman to pull the rule proposal until the tenure of Commissioner Robert Shinn is over. Our reasons are contained in the letter below to the Governor and Attorney General. Our longer testimony is also posted, going into greater detail on why Commissioner Shinn should not be promoting this proposal. If you agree with our reasoning, we ask that you call the Commissioner at 609-292-7695. The Governor's number is 609-292-6000. Written comments on the cranberry permit itself can be sent up until December 18, 1998 to: Janis Hoagland, Esq., Attn. DEP Docket Number 24-98-09/672

Office of Legal Affairs, NJ Dept. of Environ. Protection, PO Box 402 Trenton, NJ 08625-0402.

We also think it is very important that the Regional Administrator at US EPA, Jeanne Fox, hear from you. EPA has final say over proposed new General Permits under NJ FreshWater Wetlands Protection Act. They would not accept the mitigation scheme proposed back in 1996. It has not improved at all. Please write to: Jeanne M. Fox, Regional Administrator, US EPA Region 2, 290 Broadway, New York, NY 10007-1866.

Governor Christine Todd Whitman
The State House
Trenton, NJ 08625

Attorney General Peter Verniero
Richard Hughes Justice Complex
25 Market St.
Trenton, NJ 08625

Dear Governor Whitman and Attorney General Verniero:

The New Jersey Audubon Society and New Jersey Chapter of the Sierra Club formally request that you intervene to postpone consideration of the proposed General Permit for the cranberry industry in New Jersey, as found in the NJ Register of October 19, 1998. We do this on two grounds. One, it should be withdrawn on its substantive and legal demerits, as we outline in the enclosed six page analysis, and two, it should be withdrawn for consideration during the tenure of Robert C. Shinn, Jr. as Commissioner of the Department of Environmental Protection because of the questions and issues raised about the Commissioner's regional political and previous economic ties to the leading cranberry growers, as outlined in the enclosed newspaper article by Dunstan McNichol which appeared in the November 11, 1996 edition of The Record. To the best of our knowledge, the factual basis for our request, based on the information in this article, has not been refuted and may understate the extent of the formal and informal ties.

We also think it is appropriate for the Attorney General to look further into the substance of these matters because of an action he took in August of this year to ask David Moore, the head of the New Jersey Conservation Foundation, to recuse himself from a vote of the Tidelands Resource Council, of which he serves as chairman, on the Rt. 29 extension along the Trenton waterfront, allegedly because Mr. Moore's organization had participated in litigation against a related NJ DOT project south of Trenton years earlier. While we are having trouble understanding the grounds upon which Mr. Moore was asked to recuse himself, the suggestion seems to be he had at least the appearance of a conflict of interest. While we disagreed with that assessment, it seems to us that the facts raised by Mr. McNichol's article, and the nature of the cranberry proposal itself, raise a better case for the appearance of a conflict of interest than that mounted against Mr. Moore. In addition, we ask you to take note that the mitigation scheme proposed in the General Permit sets up a pronounced and extended role for the Commissioner of the NJDEP in overseeing an annual review the creation or enhancement of white cedar swamp wetlands.

We thank you for your time and consideration in this important matter of public policy.

Sincerely,

 William R. Neil
Director of Conservation
New Jersey Audubon Society

 Jeffrey Tittel Sierra Club
Executive Director
NJ Chapter of the Sierra Club

November 16, 1998

 1. There is the appearance of a possible conflict of interest between Commissioner Shinn and the cranberry growers. We call upon Governor Whitman and the Attorney General of the State of New Jersey to ask NJ Department of Environmental Protection Commissioner Robert C. Shinn, Jr., to formally postpone consideration of this General Permit until after his tenure at the NJDEP is ended. We do this because of the political and economic interrelationships between Burlington County political leaders, the major cranberry growing families, Commissioner Shinn (and at least one key member of his staff) and his previously owned Material Handling Company. These interrelationships seem to us, in a common sense civic way, to raise questions as to whether the Commissioner can be truly independent of these relationships as he considers a permit designed to expand cranberry operations at the expense of wetlands, and for the financial benefit of the leading cranberry operators. We remind readers that the ethics laws governing public officials in NJ rest not just upon actual, literal conflict of interest, but the appearance of conflict of interest.

We base our request upon the information in the article published in the November 11, 1996 edition of The Record by Dunstan McNichol (page A-1 and page A-4). We want to make it clear that there is no accusation of illegal conduct here, but rather recognition of an extensive web of regional and political ties which might undermine the basis of objective and independent analysis needed to evaluate the proposal for this very unusual general permit: unusual in its scope of allowing for the destruction of so many acres of wetland (300), for grossly violating the nature of all the 23 existing NJ general permits (all authorize losses of 1 acre or less; this proposal allows losses of up to 10 acres per grower per year), and unusual in that the "mitigation" or compensation language to make up for wetland losses violates all the key policy objectives for mitigation found in the regulations that accompany our Freshwater Wetlands Protection Act (FWPA) at 7:7A-14.1-14.3.

Our thinking here parallels that of the Attorney General himself, who asked the Director of the New Jersey Conservation foundation, Dave Moore, to recuse himself from voting as Chairman of the Tidelands Resource council in August of 1998 in the Route 29 extension matter on the grounds that Mr. Moore's organization had previously litigated against (years earlier) other permits requests for Rt. 295. When we asked a representative of the Attorney General's Office at the Rt. 29 hearing on August 5, 1998 for the specific legal grounds and basis of his request of Mr. Moore, we received only the answer that the matter could not be publicly discussed for reasons of confidentiality. We think we have a far better case for asking Commissioner Shinn to postpone this proposal than was mounted against Dave Moore. And we have plenty of time too; Ocean Spray and its New Jersey growers are doing very well, breaking into the Fortune Five Hundred list of largest companies in 1992, when it ranked #346, and busily creating demand for cranberry products ever since. But it seems the demand doesn't quite match the over-supply: The Star Ledger of November 3, 1998 is reporting that the industry has 2,000,000 barrel oversupply nationwide, with a "near record harvest" in New Jersey this year. (Meg Nugent, "Tart warning on cranberries," page 13).

2. The proposed General Permit is illegal. It violates both the federal Clean Water Act (CWA) and the NJFWPA that limit general permits to certain activities that would generate no more than "minimal individual and cumulative impacts," (found at Section 404(e)1 in the CWA and at 13:9B-23(c) in the NJFWPA). We don't believe any proposal that authorizes losses of up to ten acres per grower per year individually, nor 300 acres over 5 years cumulatively, can meet the plain English meaning of the word minimal. Indeed, the proof of intent in our state wetlands law is that all the other 23 general permits are under 1 acre impacts; at the national level, a major environmental group is suing the Army Corps of Engineers on these groups for Nationwide Permit # 26. There has been a nationwide outcry against the scope of losses, individually and cumulatively, that the Corps allows under their Nationwide system. When the Corps proposed alternatives to Nationwide 26 once again this summer (July 1, 1998) there was such an outcry against a new nationwide for "Master Plan Development Activities" that it has since been withdraw: it would have authorized up to ten acres of wetland losses for projects over 500 acres in scope.

New Jersey Audubon maintains the nature and scope of the proposed cranberry bog creation are suited to Individual permit applications, not the General Permit system.

3. The New Jersey Freshwater Wetlands Protection Act as well as the Federal Clean Water Act, are the laws that apply to this permit. Despite warnings in the NJ Register Summary that the "Department's freshwater wetlands permitting authority in the Pinelands is more limited than in the rest of the State," the reality is that the Pinelands "exemption" found at 13:9(B)-6(b) itself contains an "exception" for dredged or fill material (and all cranberry bogs created in wetlands would engage these activities/terms) that brings this general permit under the strictures in our Freshwater Wetlands Protection Act. The Commissioner and the industry, it seems to us, are striving very hard to avoid the CWA and NJFWA scrutiny that would be involved under 404(b)1 and 13:9(B)-9, the alternatives analysis and mitigation sequencing requiring permittees to "avoid, minimize and mitigate" if these proposed activities were to come under the Individual Permit application. That is where these applications for bog creation belong. Although it doesn't quite say it this way, the proposed General Permit seems to be created in, but not of, the New Jersey FWPA. But where is the language at 13:9(B), General Permits, that permits them to place this type of activity there? And the act of creating new cranberry bogs in wetlands violates 4 out of 5 of the prohibited activities found at 13:9(B)-17: "Removal, excavation, or disturbance of soil (1); dumping or filling with any material(2); erection of structures (3)... Destruction of plant life which would alter the existing pattern of vegetation(5)...

We find it ironic and shocking that the Department can write on page 3726 of their Summary that "New Jersey has special pressures on its environment that require more stringent controls. Second, the Pinelands is a region that is nationally recognized for its unique ecosystems..." while previously, at page 3722 in the Summary, it argues that "the Department is only authorized to require mitigation in the Pinelands to the extent that the Federal wetlands program would require such mitigation."

In other words, despite the fact that our Freshwater Wetlands Protection Act was specifically created to close the gaps in the weak wetlands protection offered under the Clean Water Act, the Department is only going to hold the growers to Federal Standards. We maintain that this is both wrong legally, because the changes are proposed in our state law, and morally, because the Department has the discretion to create specific mitigation requirements under our rules for General Permits. So their logic and legal thinking here is quite a contradictory mess. The Department should please stop telling the public how special New Jersey and Pinelands resources are and then straining to find ways to offer less than the best protections and mitigations available.

 4. The mitigation scheme at 7:7A-9.23k is the most one-sided environmental public policy proposal we have seen in the past ten years.We say that because the Department insists on following the weak federal general permit guidance rather than what they could invoke under our own law's regulations for mitigation found at 7:7A-14.1. The Department's proposals for mitigation violate every one of the policy principles embedded in our own acts regulations. Our law requires the private party getting the public permit to post a bond to cover the costs of the mitigation: this proposal requires none. The growers don't even have to raise money beyond the token (split among 47 growers) $25,000 already donated; they can cash in the Pinelands Credits that they have been already assigned through the Pinelands Commission regulatory authority, at the rate of about 12,600 per credit. The growers also don't have do the creation or enhancement project onsite, or buy new private land as required under our law; the land for mitigation is apparently going to be supplied by the taxpayer from the inventory of existing public lands, thereby saving the growers even more money. And guess what, despite all the Department's rhetoric about our special NJ and Pinelands resources, they're not going to even require the creation/enhancement mitigation be deed restricted, as is required by our regulations. We think that means, since we're only going to be creating or enhancing white cedar resources on public land, that someday when the cedars are grown the Department will allow them to be harvested for timber. And finally, as if this wasn't enough, it is clear that legal responsibility for the success or failure of the mitigation is being transferred from the private party getting the public permit, the cranberry growers, to the DEP. Of course this violates both the letter and spirit of our state wetlands regulations, because the whole point of requiring applicants to post a bond was to establish legal accountability so that the work actually gets done. We think this mitigation scheme makes a mockery of what the NJFWPA intended, and is a clear financial windfall to the growers. Its very one-sidedness makes us skeptical about Commissioner Shinn's claims to objectivity in these proceedings.

 5. The mitigation scheme will not generate enough money to achieve at least a 1:1 ratio between wetlands lost and wetlands created or enhanced for seven out of the eight wetland types ranked at 7:7A-9.23(d). Once again, the Departments proposal is weaker on mitigation for 7 of 8 types of wetlands than what our mitigation rules call for. We say that because the scheme set up only deals in money/PDC equivalents, not the explicit acreage ratio that should be required. For Atlantic White cedars, the scheme would generate about $44,000 dollars (12,000 x 4) or $4,400 dollars per acre if the full ten acres of wetlands were to be destroyed. There is some evidence that white cedar can be fenced and enhanced for about $2,000 an acre - so for this one type of wetland loss and enhancement, the system would seem to work. But the other ratios of PDC's to other types of wetlands losses would mean a per acre figure generated below $2,000 dollars, below what it costs to do the white cedar enhancements. And while we believe it is appropriate to restore white cedar if that is the wetland type of loss that cannot be avoided, we have, ecological and legal, with making white cedar restoration serve as the mitigation for the loss of forested wetlands, shrub-scrub wetlands, and emergent wetlands, the only other types of losses that require mitigation. We believe that if the NJ law is followed, unavoidable losses of these different habitats should require the biological equivalent to be enhanced or created. And we know from state and federal experience on the eastern seaboard that the costs per acre of these mitigations can run 20,000 dollars or more... way, way above what is on the table here.

 6. The hierarchy of wetland types and values, 8 in all, found at 7:7A-9.23(d) is not grounded in sound science and is meaningless without field verification and analysis of the proposed sites. While the Department has created the hierarchy in order to guide growers away from "more valuable" wetlands, in fact a 40 year old abandoned cranberry bog wetland may be richer in biological value, including T & E species, than the scrub/shrub wetland type that has a higher ranking. But all this is speculative without field verification. Since the growers refuse to disclose where they want to create their new bogs, it is impossible to assure the public that wetland values will be protected by this system. We think it is terrible public policy to exclude the 4 lowest raked types in this system from the mitigation scheme, and we question the legal basis upon which this rests. Certainly it flies in the face of everything in our state law and regulations.

7. The invocation of "no net loss" of wetlands has more rhetorical value than biological value, especially since the mitigation scheme set up to compensate for wetlands lost will not assure a 1:1 ratio of creation or enhancement because the funds required to be transferred are insufficient on a per acreage basis to accomplish the goal. In addition, as stated above in 6, four of the 8 wetland types set up don't require any mitigation at all. Ironically, the white cedar swamps which are held up as the apotheosis of wetland and Pineland values here, apparently are not important enough to have their own protections within the Pineland Commission's regulations themselves, nor is the Department going to deed restrict the new ones that are created or enhanced. That's why we don't get excited about the term "no net loss."

8. We are very troubled by the introduction of the new definition of wetland "loss" at 7:7A-1.4 because it moves in the direction of altering one of the most important features of the NJFWPA, the requirement that an applicant obtain a permit if they engage in a regulated activity such as the "drainage or disturbance of the water level or water table" - found at 13:9B-3. This was done to close a gaping whole in the federal CWA that allows for drainage of wetlands without regulation. To suggest, as this definition does, that it is not a wetland "loss" until all the characteristics of a wetland are gone appears to open a line of reasoning entirely counter to the intent of our law to regulate even minor fluctuations in water level caused by drainage. Once again, in the desire to please one industry through dubious legal and administrative paths, the Department is bending our freshwater wetlands act entirely out of shape.

9. We question the need for an expansion of the industry at this time. NJ Audubon believes that if there is a case for industry expansion at this time, then the best way to do it is have the individual grower come in and apply for an Individual Wetlands Permit under the rules and regulations of New Jersey's law. But based on the fact that Ocean Spray is an industry doing very well in the 1990,s breaking into the Fortune Magazine's 500 in 1992, and that there is currently a 2,000,000 barrel surplus at the national level, we question the need for any general permit at this time.

10. New Jersey's Ocean Spray cooperative members do not need to keep expanding into wetlands to either expand cranberry production or to make more money. They are not the traditional struggling farmers. First, as reported in the Summer 1995 newsletter of the Cape May-Atlantic County Soil Conservation District Resource News, some Jersey Farmers have created new bogs from upland fields, not wetlands. This has also been extensively done in Massachusetts. We believe one of the reasons the Department and the growers want a General rather than an Individual wetland permit process is that the General Permit will help growers avoid the alternatives analysis that will ask them to show why they can't create bogs from upland fields. We suspect that in many cases it will be cheaper for them to convert convenient wetlands they own rather than covert uplands.

We also want the public and the Department to know that New Jersey's Ocean Spray Cooperative members earn income from Ocean Spray products that they don't raise, like grapefruit products. Ocean Spray, in other words, markets some products that don't require wetland losses to produce, and New Jersey cranberry growers can benefit from this without having to expand into bogs. Also, it should be known that Ocean Spray, unlike most types of farming operations where the farmer only raises the crop, also refines and processes the crop and distributes it at the retail level. Thus it is a sophisticated vertically integrated industry that offers its members far more opportunity for greater profit levels than can ever be hoped for by most traditional family farmer type operations. We think this is a public interest factor that should be weighed by the Department in balancing private need against the protection of environmental resources. This factor would receive proper weighting if the Department would require the growers to apply for Individual Permits under our own state law.

William R. Neil
Director of Conservation
New Jersey Audubon Society