DEP’s Clearcut Of Forested Wetlands And Land Devastation Was Exempt From NJ Soil Erosion And Sediment Control Permits

After The Fact Exemption Issued Based On A Federal Habitat Plan

Another Huge Loophole That Must Be Closed By Legislation

(Caption: Source, NJ DEP Land Use Enforcement)

I’ve filed several Open Public Records Act (OPRA) requests to DEP in an attempt to get the real story about what went on in DEP’s controversial clearcut of the Glassboro Wildlife Management Area (WMA).

The more I keep digging, the worse the situation gets, as DEP slow walks and responds in dribs and drabs.

Yesterday, I learned that the Gloucester County Soil Conservation District (SCS) issued an after the fact exemption to DEP from State soil conservation and sediment control requirements:

Since 1976, New Jersey has required the management of soil erosion and stormwater from virtually all non-agriculture, construction-based soil disturbances through its adoption of the NJ Soil Erosion and Sediment Control Act (N.J.S.A. 4:24-39 et seq). Implemented by the Department of Agriculture (NJDA) and the state’s soil conservation districts, (Districts) the Act requires all construction activities greater than 5,000 square feet to be developed in accordance with a plan to control erosion during construction. The plan must also ensure that erosion will not occur once construction is completed.

The SCS did not issue any enforcement action because the DEP project was exempt from SCS permit requirements!

Imagine that: clearcutting over 20 acres (a million square feet) of forested wetlands, removing the stumps, and bulldozing the land is exempt from NJ soil erosion and sediment control permit requirements designed to protect wetlands, water quality and conserve soils.

The DEP only contacted and sought the review of the SCS after the fact because the DEP land Use Enforcement Order required DEP to do so.

According to an April 10, 2023 email from Karol Blew of the Gloucester County Soil Conservation District to DEP, the DEP’s Glassboro clearcut project was exempt from soil erosion and sediment control permit regulations and standards:

“As discussed at the March 21, 2023 Site Meeting, the District is aware the current soil disturbance in the Glassboro WMA is for creation of American Woodcock Habitat, and in conjunction with the “American Woodcock Conservation Plan”, USDA/NRCS American Woodcock: Habitat Best Management Practices for the Northeast, US Fish and Wildlife Service American Woodcock Population Status, 2022 and Glassboro Wildlife Management Area, Woodcock Habitat Creation. Therefore, the District was able to approve a Request for Determination of Non-Applicability for this soil disturbance. A copy is attached to this email. Should you have any questions or would like to schedule a site visit, please let me know. I can be reached at this email address or via phone (856) 589-5250.”

I called Ms. Blew this morning to clarify the after the fact issuance of the “Determination Of Non Applicability” (which DEP failed to provide) and understand the basis for this exemption (a term she used). I was told that it was based on the DEP’s reliance on a USDA/NRCS American Woodcock: Habitat Best Management Practices for the Northeast.

[See End Note below. Something is not right here.]

Karol Blew of SCS told me that the project was exempt from SCS permit requirements, but sill subject to the SCS technical standards. Ironically, the standards emphasize planning:

“He who fails to plan, plans to fail….” is an oft-quoted proverb. Its original author is unknown, but it is frequently attributed to such famous individuals as Benjamin Franklin, Abraham Lincoln and Winston Churchill. Regardless of who coined the phrase, failure to plan (properly) is never more evident than in a poorly thought out erosion and sediment control plan. 

….. Effective erosion control should be integrated into planning for stormwater management, and not done as an after-thought.

In addition to not seeking SCS review and approval BEFORE conducting the destructive clearcut and bulldozing, DEP failed to consider or comply with any SCS standards or requirements.

Obviously, the DEP clearcut and land clearing did not comply with the minimum SCS requirements, like installation of a silt fence. But that gross and knowing non-compliance did not trigger SCS enforcement.

On related loopholes, as I’ve previously written, DEP staff and managers, all the way up to Assistant Commisisoner Dave Golden, insisted that the clearcut of forested wetlands and site bulldozing was exempt from DEP land use and wetlands permit and regulatory requirements.

Even now, after I’ve reviewed dozens of DEP emails and documents, it remains unclear who or why the DEP changed its regulatory interpretation and decided to enforce wetlands violations.

It appears that management intervention – only after critical press reports – by Commisioner LaTourette and/or Deputy Commisioner Moriarty is what changed the DEP’s assertion of exemptions from land use/wetlands requirements and triggered enforcement.

So, this is another loophole that must be closed by Legislation. For other major loopholes, including pre-emption of local land use and other municipal ordinances, , see:

• Environmental Damage Of DEP Sparta Mountain Logging Plan Largely Unregulated

I wrote Senator Smith and other legislators to demand that they do so:

———- Original Message ———-

From: Bill WOLFE <>

To: senbsmith <SenBSmith@njleg.org>, sengreenstein <sengreenstein@njleg.org>, “kduhon@njleg.org” <kduhon@njleg.org>, asmmckeon <asmmckeon@njleg.org>, “asmScharfenberger@njleg.org” <asmScharfenberger@njleg.org>, “emile@njconservation.org” <emile@njconservation.org>, Jaclyn Rhoads <jaclyn@pinelandsalliance.org>, Ruga Elliott <elliott@njhighlandscoalition.org>, Anjuli Ramos <anjuli.ramos@sierraclub.org>, “Taylor McFarland, NJ Sierra Club” <taylor.mcfarland@sierraclub.org>,

Date: 05/03/2023 3:05 PM MST

Subject: Legislation request – Glassboro WMA clearcut

Dear Chairman Smith – I understand that you are working on legislation to implement the recommendations of your Forestry Task Force, so I will limit the scope of this specific narrow request at this point in time to other related issues not addressed by the Task Force that were exposed by the DEP Glassboro clearcut.

According to an April 10, 2023 email from Karol Blew of the Gloucester County Soil Conservation District to DEP, the DEP’s Glassboro clearcut project was exempt from soil erosion and sediment control regulations and standards:

“As discussed at the March 21, 2023 Site Meeting, the District is aware the current soil disturbance in the Glassboro WMA is for creation of American Woodcock Habitat, and in conjunction with the “American Woodcock Conservation Plan”, USDA/NRCS American Woodcock: Habitat Best Management Practices for the Northeast, US Fish and Wildlife Service American Woodcock Population Status, 2022 and Glassboro Wildlife Management Area, Woodcock Habitat Creation. Therefore, the District was able to approve a Request for Determination of Non-Applicability for this soil disturbance. A copy is attached to this email. Should you have any questions or would like to schedule a site visit, please let me know. I can be reached at this email address or via phone (856) 589-5250.”

I strongly urge you to close this loophole and subject all habitat and forestry management projects to soil erosion and sediment control requirements.

Whether this issue would best be a stand alone bill or incorporated in your comprehensive forestry legislation is a strategic legislative issue I have no recommendation on. But this loophole (and several others) must be closed.

Respectfully,

Bill Wolfe

[End Note: DEP and SCS still have not provided the requested “Non-Applicability” determination. My phone call this morning with SCS created the impression that the DEP exploited an exemption in the definition of “project” for single residential buildings – the Act (4:24-41.g.). But that says nothing about any federal habitat plan:

“Project” means any disturbance of more than 5,000 square feet of the surface area of land (1) for the accommodation of construction for which the State Uniform Construction Code would require a construction permit, except thatthe construction of a single-family dwelling unit shall not be deemed a ‘project’ under this act unless such unit is part of a proposed subdivision, site plan, conditional use, zoning variance, planned development or construction permit application involving two or more such single-family dwelling units; (2) for the demolition of one or more structures; (3) for the construction of a parking lot; (4) for the construction of a public facility; (5) for the operation of any mining or quarrying activity; or (6) for the clearing or grading of any land for other than agricultural or horticultural purposes.

Additionally, DEP and SCS did not comply with the regulations. DEP did not submit a Non-Applicability determination before implementing the project and the rules say nothing about after the fact issuance:

2:90-1.4 Application

[(a) – (d)]

(e) All requests for determination that the act does not apply to land disturbance activity shall be submitted to the district by the owner or their authorized representative. Non- applicability requests shall be in writing and include a plot or site plan depicting all proposed areas of disturbance and a resolution from the municipality or other suitable documentation indicating the date the lot was created. Hardship exemptions or waivers shall not be authorized. The act does not apply to the following activities:

1. Land disturbance activities 5,000 square feet or less; and

2. Single-family dwelling lots not regulated under N.J.A.C. 2:90- 1.5.