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NY/NJ Baykeeper Praises The Corzine DEP CAFRA Public Access Rules – The Same Rules The Group’s Lawsuit Convinced The Courts That The Christie DEP Lacked Legislative Authority To Adopt

I decided that this year it wasn’t worth the carbon emissions to drive down to Toms River for the annual Joint Legislative Environmental Committees summer hearing on the shore.

The origin of the event is linked to Superstorm Sandy, but the roots are in Gov. Corzine’s Shore Summit: “Confronting Climate Change in New Jersey“, which was held on September 25, 2006.the Gov. Corzine’ 2009 Mid Atlantic Governor’s Agreement on Ocean Conservation.

After a promising start and some solid substantive legislative oversight of DEP – including controversial Sandy oversight – over the years the joint Legislative event has devolved into a joke – a political dog and pony show and excuse for a party (key legislators have shore and Barnegat Bay homes, a conflict they never disclose as they make coastal policy).

Nothing new in that political ploy:

The context for this year’s [2012] hearings is framed by another year of stinging jellyfish and growing threats of ecological collapse and harmful algae blooms in Barnegat Bay –

But even far more serious problems lay buried beneath the radar. …

For example, the recent Monmouth County water pipeline break was a perfect illustration of NJ’s multiple vulnerabilities to global warming – extreme weather, storm surge, sea level rise, coastal hazards, infrastructure, and climate change adaptation.

The joint Legislative Committees will not focus on any of that – instead, their hearing agenda is very narrowly crafted.

This year, I emailed in my testimony, which is certain to be ignored (just as my testimony at the hearing would have been, if history is a guide, by the Committee and the media).

But I do need to respond to how the media is reporting the hearing and narrowing focusing on – and missing – the public access debate and public trust doctrine issues.

As usual, in virtually all complex policy issues, they are getting the story badly wrong and completely missing the point that the beach access issue is a diversion from dealing with real serious ocean and coastal issues and huge failures by both the Democratic controlled legislature and the “Rebuild Madness” Christie Administration.

For example, see this recent article by one of NJ’s best investigative reporters, Jeff Pillets of the Bergen Record, which was one of the very few news stories to discuss the State’s long term economic cost obligations of the federal beach replenishment program, and the fact that those costs and the beaches are not sustainable and therefore support a policy of “strategic retreat”, see:

Legal fees mount as N.J. dune battle drags on

“The costs, the whole idea of perpetually replenishing a beach, is simply unsustainable,” said Norbert Psuty, a retired professor from Rutgers University who has spent his life studying shifting sands.

Psuty said excessive development along the shorefront and bays prevents natural forces that build and reshape dunes and their tendency to migrate toward the land.

“The beach, the dunes, are always moving and reshaping themselves,” he said. “In the short term you can do patch work, you can move people out of harm’s way. But in the long term you’re not going to be able to survive.”

Let me explain why the whole event today – and the news coverage – is total bullshit:

• Public Access problem the result of Pyrrhic legal victory by environmental groups

In this Politico story, it is remarkable that Deb Mans, head of NY/NJ Baykeeper, praised the Corzine DEP public access rules. (aside from the undisclosed fact she worked for the Corzine Administration as the Governor’s environmental policy advisor – a gross bias that needs to be disclosed):

“One of the things that the 2012 rule did was set a really high bar before you triggered public access,” Mans said. “Before if you had an expansion of the footprint or you were rebuilding your bulkhead you would trigger a public access … If you couldn’t provide for it on-site you would have to do it off-site.”

Mans was right to oppose the Christie DEP public access rule. It was very bad and it repealed a far better Corzine DEP rule.

But Mans successfully sued to block the Christie DEP rule, so first of all, we need to understand the legal attack and unintended results of that lawsuit.

That lawsuit made a radical “ultra vires” legal argument  that DEP LACKED LEGISLATIVE AUTHORITY TO REGULATE TO ENFORCE THE PUBLIC TRUST DOCTRINE.

That legal argument also claimed that DEP lack legislative authority to provide or require financial compensation for off site public access if a facility could not provide on site access.

How can Mans now praise those rules if DEP lacked the power to enact them?

How can she praise Corzine DEP rules for requiring provision or finance of off site access if she eliminated DEP’s legal ability to require provision of compensation for off site access? HELLO!

NJ/NJ Baykeeper’s lawsuit filed by Ms. Mans created the current problem – she made radical anti-DEP legal arguments that even the strongest opponents of DEP’s public access rules – i.e. the shore towns, Marinas, Chamber of Commerce, NJBIA, and NJ Builders Assc. – would never even try to make!

This is a classic example of A Pyrrhic victory

If you want to understand the arguments with links to court decision et al, see:

• NJ Court Decision Striking Down DEP Coastal Rules Is A Disaster For Public Access and The Public Trust Doctrine

On top of all that, following the Court’s decision striking down the DEP rules for lack of legislative authority, Senator Smith had huge leverage and he absolutely blew it by passing emergency legislation that merely effectively codified the bad Christie DEP rules in statute.

For that story, see:

• Senate “Emergency” Session Moves Bill To Respond to Court Decision Striking Down DEP Public Access Rules 

Finally, all the real issues that are all being ignored today – especially climate change – are laid out here:

• Christie DEP Report Outlines Devastating Impacts Of Climate Change On NJ Coast

This is what weenie conservation looks like

Here is a perfect example of the worst aspects of troubling tendencies in the NJ Conservation community and media. This goes way beyond greenwash – another band aid on a gaping wound sold as progress.

Governor Christie, NJ conservation groups, legislators, and the media just congratulated themselves and celebrated passage of a law designed to protect diamondback terrapin. The law was described as a “key step for the species”.

The prohibition on harvesting the turtles will no doubt have a positive impact on the species. But a “key step”? Don’t think so.

However, glowing press reports and praise by conservationists – devoid of context – left the general public with a completely false and overly favorable assessment, while key issues were ignored.

The bill faced no opposition and was passed unanimously in both houses of the Legislature and signed by Governor Christie, NJ’s worst environmental governor.

Christie took the opportunity to issue an over the top press release:

“Today we join other Atlantic coastal states that have taken an important step to prevent this unique species from any further decline toward extinction. The diamondback terrapin is a natural treasure and integral part of our coastal landscape in New Jersey, and this action will help to ensure the species remains a feature of our natural landscape for generations to come,” said Governor Christie.

That is total bullshit – extinction is a distinct possibility and those extinction threats are greatly magnified in the “generations to come” – particularly as a result of the climate denial, coastal land use and fossil fuel dominated energy policies of Governor Christie.

And useful idiots said crap like this:

“It’s a good move,” said Bill Sheehan, director of the Hackensack Riverkeeper. “Now we just have to keep up with the poachers. It’s up to the proper agencies to enforce this.”

It’s not the poachers you need to worry about there Captain Bill.

Here is the real story you were not told that makes a mockery of what you were led to believe. I tried to use this same turtle species to suggest that story a few years ago (and this post and this post).

Primary Threats To Diamondback Terrapin

We learn from Defenders of Wildlife

Threats

The diamondback terrapin is threatened by habitat destruction, road construction (terrapins are common roadkill) and drowning in crab traps.

Climate change is also poised to bring major changes to the terrapin’s habitats and life cycle. By the end of this century, sea level is projected to rise between 2.25 feet under a low emissions scenario and up to 3.25 feet under the highest emissions scenario.

Due to land subsidence in the Northeast, the effect of the rise will seem about 10 to 20% higher than the actual. Salt water incursion into brackish tidal marshes will alter their character and potentially make large areas saltier than the terrapin can tolerate. Storm surges and beach erosion threaten their preferred nesting habitats. And higher temperatures on nesting beaches could skew the sex ratios of offspring.

Prohibition on harvesting turtles will have absolutely no impact on reducing the threats of climate change and habitat destruction.

Actual Conditions and Status of Threats

I recently wrote to document a range of devastating climate change impacts on the NJ shore – including rampant overdevelopment.

Here is an excerpt that is directly relevant to the diamondback terrapin, from NJ DEP’s Coastal Assessment and Strategy – 2016-2020: (@ page IV-115)

Tidal marshes can adapt and keep pace with sea level rise through vertical accretion and inland migration, but must remain at the same elevation relative to the tidal range and have a stable source of sediment. Coastal wetlands risk permanent inundation if sea levels rise faster than the rate by which they can accrete. Through the process of vertical accretion of sediment and organic matter, the tidal salt marsh surface will rise in relation to sea level, i.e., the marsh can continue to grow ‘up’ into a rising sea (Cahoon 2010). When sea level rises faster than marsh accretion, tidal marshes are drowned and replaced by unconsolidated shore (i.e., mud or sand flat) and eventually open water (Cahoon and Guntenspergen, 2010). The degree of wetland loss is directly related to the rate of sea level rise compared to the accretion rate. The combination of sea level rise and vertical accretion forces coastal wetlands to migrate inland causing upslope transitional brackish wetlands to convert to saline marshes and the saline marshes on the coastline to drown or erode.57 

Along portions of New Jersey’s coast, development located upland of the marsh edge forms a physical barrier to the gradual movement of marshlands inland, blocking the inland migration of these ecosystems as sea level rises. One concern along New Jersey’s coast is that rising sea level will reduce the extent of some coastal marshes, changing them from vegetated areas to mud flats or open waters and that upland development will prevent the migration of tidal wetlands landward, resulting in an overall reduction of the extent of these vital components of the coastal ecosystem.

In a study from July, 2014, Modeling the Fate of New Jersey’s Salt Marshes Under Future Sea Level Rise, conducted by the Rutgers University Center for Remote Sensing and Spatial Analysis, modeling results suggests that if sea level rises between one to two feet by 2050, existing tidal salt marsh in New Jersey could decline by approximately 5%, being replaced by open water and unconsolidated shore. One foot of sea level rise may cause more than 9,300 acres of salt marsh to convert to open water and nearly 2,000 acres of salt marsh could be impeded from retreat. The modeling also found that at a sea level rise of three feet or greater, salt marshes are not able to vertically accrete fast enough, increasing the loss and conversion of salt marsh. While the predicted loss may be balanced by ‘new’ marsh (i.e., unimpeded marsh retreat zone) it is unclear whether this ‘new’ marsh will have the same ecological value in the short-term (i.e. over decadal time scales) as the established tidal salt marshes that may be lost.

New Jersey’s coastal wetlands on the Atlantic Coast are bordered by roads and extensive development. This hard infrastructure provides little or no natural buffer to our coastal wetlands. Adequate low elevation natural land cover buffers may allow coastal wetlands to migrate landward over time as sea level rises. Coastal buffers may also provide much-needed sediment required for coastal marsh elevations to rise with the rising sea level over time. The combination of sea level rise and vertical accretion forces coastal wetlands to migrate inland causing upslope transitional brackish wetlands to convert to saline marshes, and the saline marshes on the coastline to drown or erode. Along portions of New Jersey’s coast, development located upland of the marsh edge forms a physical barrier to the gradual movement of marshlands inland, blocking the inland migration of these ecosystems as sea level rises. Further, because the State’s Freshwater Wetlands Protection Act allows buffers to range in size from zero, in some cases, to 150 feet maximum, there has been an inclination to match, but not exceed, these buffer widths for coastal wetlands. As a result, over time, the width of buffers adjacent to coastal wetlands has declined.

Delaware Estuary Threats

Turtle habitat includes the Delaware estuary, which DEP documents is also threatened: (page IV-74)

The Delaware Estuary is also experiencing climate change-related issues such as the inability of wetlands to keep pace with sea level rise due to the lack of sediment; the impacts of sea level rise on wetlands health and extent; land subsidence; and the migration of alien or invasive species into wetlands. The estuary also has water quality issues due to runoff, development, and industrial discharges.

Subsidence Threats

In addition to climate change driven coastal marsh and Delaware threats, the NJ Coastal plan is also subsiding (sinking): (page IV-114)

To understand how salt marshes drown or expand, we need to have an understanding of the balance between sediment supply, sea level rise, and vegetation. If the marsh platform evolves to an elevation lower than mean high tide, either through reduced sedimentation, land subsidence, or an increased rate of sea level rise, then these marsh plants will die and the marsh will drown. Drowning often results in a rapid loss of marsh elevation; once marsh plants die, the marsh sediments become susceptible to erosion, and marshes rapidly convert to subtidal flats (e.g., Fagherazzi et al., 2006)51.

Residents of New Jersey’s coastal zone can see and note changes to the marsh edge. As Downe Township Deputy Mayor Lisa Garrison noted in a recent article, “Erosion is changing the face of the meadows.” A recent study in New Jersey found interior marsh (i.e. marsh platform) loss from expanding channel networks and pond development is causing significant dissection of the marsh platform.52 The researchers noted that the reduction in marsh habitat area has accelerated due to perimeter shore line erosion, sea-level rise, and coastal submergence. For example, along a marsh shoreline within the Mullica Great Bay estuary system, the researchers found that the rate of loss of saltmarsh habitat amounted to 1.6 m yr. between 1995 and 2008. As a means of reducing mosquito problems several organizations within the state developed and refined techniques for Open Marsh Water Management (OMWM). OMWM is a land management practice designed to control mosquitos by creating open water ponds on marsh or parallel grid ditching and salt hay farming to increase tidal exchange on the marsh.

The erosion of marsh edge and marsh platform can also result in an indirect impact to coastal shoreline development because marshes reduce storm surge wave heights due to their position in the coastal landscape and the plants growing on the surface. Severe erosion of the marsh edge results in a retreat of the marsh mat, thereby reducing the extent of the marsh.53 Several recent reviews (Gedan et al., 2011; Shepard et al., 2011; Spalding et al., 2013)545556 have found that salt marshes have a moderating influence on attenuating storm surge and waves and a moderately positive role in shoreline stabilization.

DEP Abdicates Climate Adaptation Planning in Coastal Management Strategy

Despite Steeply Rising Risks, Report Virtually Abandons DEP role

Report Sharply Contradicts Gov. Christie’s Statements on Climate Change

The Christie DEP quietly adopted a federally mandated update to NJ’s coastal management strategy, see:

• New Jersey Coastal Management Program Section 309 Assessment & Strategy – 2016 –2020

Under Section 309 of the federal Coastal Zone Management Act, coastal States are required to adopt the so called “309 Report” and incorporate it in enforceable State policies, plans and regulations, as a condition of federal funding.

The Christie DEP 309 Report was developed with limited public awareness or input in behind closed doors private “by invitation only” Stakeholder meetings, in flagrant contradiction to NOAA policy.

[Update: Star Ledger editorial today slams DEP “Stakeholder” meetings too and calls for legislative vetoes of Flood hazard and Highlands septic density rules – read the whole thing]

As the title of the Report make clear, it provides an assessment of conditions effecting 9 critical issues: wetlands, coastal hazards, public access, marine debris, cumulative and secondary impacts, special area management plans, ocean and Great Lakes resources, energy and government facility siting, and aquaculture.

States must establish priorities and prepare enforceable strategies, policies, and management plans for each critical issue.

The DEP’s coastal assessment paints a bleak future for NJ’s coastal zone, as a combination of climate change driven phenomenon are magnified and coastal natural resources continue to suffer severe impacts of both climate change and continuing rampant over-development.

The Christie DEP’ strategy to respond to these threats is equally bleak, as DEP essentially outsourced its role on climate issues to Rutgers and various private entities or local governments and downplayed or abdicated DEP’s planning and regulatory powers.

So let’s take a quick look at some of the key issues – we encourage you to read the whole report.

Coastal Assessment and DEP Strategy

1. Continuing loss of wetlands:

Between 2007 and 2012, NJ’s coastal counties lost 7.64 square miles (4,890 acres) of wetlands:

• 2.58 square miles of wetlands were converted to development;
• 2.89 square miles of wetlands were converted to water; and
• 2.17 square miles of wetlands were converted to barren land.

DEP’s response to these losses is lame:

Superstorm Sandy severely impacted New Jersey’s wetlands due to storm surge, flooding, and erosion. The State is encouraging ecologically-based solutions through the establishment of living shorelines to restore natural areas and mitigate the future loss of property rather than hard armoring shorelines as the sole solution.

It is absurd and Orwellian to argue that the Christie DEP is encouraging “ecologically-based solutions” with a tiny group of these band aid projects, while losing that many acres of sensitive wetlands and while the State and federal governments are spending billions of dollars on unsustainable and costly engineering solutions, like beach replenishment, steel sea walls, bulkheads, and constructed dunes.

2. Cumulative and Secondary Impacts of Rampant Over-development

Between 2007 and 2012, the impervious surfaces – in what is already a highly developed coastal region  in coastal counties increased by a whopping 2%. That number may seem small as a percentage, but it is huge in magnitude. Take a look:

Impervious surfaces (rooftops, parking lots, roads, etc) not only destroy natural vegetation and habitat, they contribute to flooding risks, degrade water quality, and threaten water supplies.

This continuing increase in over-development and impervious cover comes at a time when the Christie Administration abandoned the State land use plan and replaced it with an economic growth strategy.

Again, check out how the Orwellian Christie DEP defends this abandonment of State land use planning:

The Department recognizes the importance and value of addressing cumulative and secondary impacts and does so through regulatory programs that review individual projects. During this assessment period, the State proposed a New State Strategic Plan to replace the current State Development and Redevelopment Plan and Map that would require the NJCMP to reevaluate its method of coordinating local and regional land use planning with the objectives of the NJCMP. In addition, Superstorm Sandy emphasized the need to assist coastal communities in understanding coastal hazard vulnerability and to identify new planning approaches that can create resilient and sustainable communities.

What are these “new planning approaches?

To their credit, the DEP professionals admitted that they don’t have any:

Current processes, including Plan Endorsement with the State Plan, and CAFRA center designation under CZM rules, that work toward achieving a balance in human and natural resource protections in the coastal zone, will need to be modified moving forward to incorporate resiliency and address changes in the broader State planning processes.

3. Coastal Hazards Proliferate

Perhaps the most frightening future for the shore is addressed under the euphemism “coastal hazard”. Take a look at how DEP characterizes that:

NOAA coastal hazard tools show hundreds of thousands of New Jersey’s residents live in vulnerable areas; 67% of New Jersey’s coastline is at high or very high risk to coastal erosion; and 60% of the coastline is projected at high or very high risk to sea level rise. New Jersey’s Coastal Vulnerability Index (CVI) mapping shows over 550,000 acres as highly vulnerable to coastal hazards.

How is the Christie DEP responding to these serious and accelerating risks?

With more Orwellian spin –

The first boldface DEP statement below is true: DEP promoted Governor Christie’s insane “Rebuild Madness” policy. But the following claim is flat out false: DEP CZM rules weakened development restrictions and actually promoted new development in environmentally sensitive and hazardous locations.

In response to Superstorm Sandy, the Department adopted regulatory amendments to the Flood Hazard Area Control Act Rules and coastal rules in 2013. The changes to the coastal rules were intended to facilitate the expeditious rebuilding of more resilient coastal communities and coastal-related industries, and help facilitate the recovery of the coastal ecosystem. The New Jersey Coastal Management Program (NJ CMP), through the CZM rules, will continue to steer development away New Jersey Coastal Management Program Section 309 Assessment & Strategy 2016-2020 from naturally hazardous and sensitive areas, protect estuarine and marine environments from adverse impacts, and promote resource conservation and designs sensitive to the environment.

4. Energy Infrastructure Ignored

At a time DEP is reviewing and approving wetlands & CAFRA permits and Water Quality Certificates for major new fossil fueled gas power plants and gas pipelines in the coastal zone and has proposed off shore LNG and several existing nuclear power plants to deal with – a hazardous zone highly vulnerable to climate change driven sea level rise and storm surge – the Christie DEP has NO STRATEGY and NO PLANS to address that set of issues.

Here is DEP’s entire “assessment and strategy” – seriously, this is it:

Energy and Government Facility Siting (Medium Priority)

While this enhancement area is important to the NJCMP, it will be addressed under current regulatory processes and other enhancement area strategies.

It is important to note that the State DEP coastal zone management powers are NOT preempted by federal law, like the Natural Gas Act and FERC.

The DEP has the power to kill major energy projects like gas pipelines and power plants upon a finding that the project would be “inconsistent” with DEP’s Coastal Zone Management Plan.

Additionally, the DEP Clean Water Act Section 401 Water Quality Certificate is issued in the coastal zone in CAFRA permits.

This makes it very important that pipeline activists pay close attention to CAFRA permits for energy infrastructure.

5. Christie DEP Outsourcing of Climate Change and Adaptation Planning

I saved the best for last.

Contrary to Governor Christie’s public statements that climate change is an “esoteric issue” that “people don’t give a damn about” and “not a priority” and had “nothing to do with Sandy”, the DEP Report actually does reflect the science and does mention climate change and characterizes the risks of flooding, coastal storms, shoreline erosion, and sea level rise as “high priority” and “high risks”.

The loss of drinking water supply due to salt water intrusion is only called a “medium” risk – purportedly because it “varies by location”.

What do the people who live at the sure do without a drinking water supply?

The DEP then goes on to list a series of Reports and plans developed by a series of groups to address these “high risks”

I will present the text in its entirety – one of the things you should note is that DEP has outsourced ALL this critical work and incorporated NONE of it in DEP plans and regulations!

DEP admits that the regulatory changes that they did adopt were not based on the science in the Report (page IV-31)

These changes were not 309 driven.

DEP presents a list of voluntary, local and/or private initiatives to respond to these “high risks. Various vulnerability assessment, mapping and “resilience” initiative are described, none of which are enforceable State DEP Programs, Plans or regulations:

The RCCI is a voluntary planning project that provides coastal communities with both planning and technical support in order to reduce exposure and vulnerability to hazards through long-range planning. The initiative supplements and leverages existing work being performed by project partners including Rutgers University Edward J. Bloustein School of Planning & Public Policy, JCNERR, UCI, Sustainable Jersey, and NJ Future.

None of this work – by DEP’s own statements – has been incorporated in enforceable DEP polcies.

That failure to implement the climate science amounts to a total abdication of DEP’s responsibilities under federal and State laws. The federal CZMA requires “enforceable” policies. The CAFRA statute and a myriad of other State laws put DEP is charge of managing the coastal zone and protecting its natural resources and risks to people and property.

So, let’s take a look at these “high risks”. The DEP Report states: (starting on page IV-27):

Following is a selection of recent reports related to identified coastal hazards that are illustrative of the increasing risk to New Jersey’s coastal area.

• State of New Jersey 2014 Hazard Mitigation Plan 

http://www.ready.nj.gov/programs/mitigation_plan2014.html

The State of New Jersey 2014 Hazard Mitigation Plan (HMP) includes an overview of the location of all natural hazards that can affect the State, including information on previous occurrences of hazard events, as well as the probability of future hazard events. The HMP identifies a comprehensive list of natural and man-made hazards applicable to the State and evaluates them to identify the overall hazards of concern for the State of New Jersey. Coastal erosion and sea level rise, earthquakes, floods (riverine, coastal, storm surge, tsunami, and stormwater), geological hazards (landslide and subsidence/sinkholes), hurricanes and tropical storms, nor’easters, and severe weather (high winds, tornadoes, etc.) were included in the list of Hazards of Concerns. According to the HMP Executive Summary those hazards that pose greatest risk to the State include coastal hazards such as flooding (riverine and coastal), hurricanes and tropical storms and accompanying wind and storm surge, and earthquakes.

• Nuisance Flooding 

Recently released reports from NOAA indicate that nuisance flooding – defined by NOAA’s National Weather Service as between one to two feet above local high tide – will occur more and more frequently. So-called “nuisance flooding” — which causes public inconveniences such as frequent road closures, overwhelmed storm drains, and compromised infrastructure — has increased on all three U.S. coasts, between 300 and 925 percent since the 1960s, according to the NOAA technical report (Sea Level Rise and Nuisance Flood Frequency Changes around the United States). The report indicates an average 0.43 nuisance flood days (1957-1963) and 3.1 (2007-2013) at Atlantic City, an increase of 682%. At Sandy Hook, the report indicates an average 0.45 nuisance flood days (1957-1963) and 3.3 (2007-2013), an increase of 626%.

• Sea Level Rise 

Recent data and studies have shown that sea level rise is occurring in New Jersey at a faster rate than is occurring globally. Tide gauges off New Jersey’s coast show sea level rising at 3-4 mm/yr. since 1900. The New Jersey coastal plain is also subsiding due to sediment compaction and groundwater  withdrawal, accounting for about another 1 mm/yr. A recent report on sea level rise in NJ14 predicts sea level rise of 7 to 16 inches by 2030; 13 to 28 inches by 2050; and, 30 to 71 inches by 2100.

While this Assessment was being drafted, a study by researchers at Rutgers and Harvard Universities (http://www.nature.com/nature/journal/vaop/ncurrent/full/nature14093.html) was issued indicating that the rate of sea level rise (SLR) has increased in the past 20 years. This new information may affect some SLR projections.

• New Jersey Climate Adaptation Alliance 

Resilience: Preparing New Jersey for Climate Change

http://njadapt.rutgers.edu/docman-lister/resource-pdfs/73-njcaa-gap-analysis-final-pdf/file

This report is a step toward developing policy recommendations to enhance climate change preparedness in New Jersey. It summarizes key gaps identified to date through a stakeholder outreach process. It provides context regarding New Jersey’s changing climate and vulnerabilities. Next examined is the science of climate change – specifically, what New Jersey in the 21st century can expect in regard to precipitation, temperature, sea level rise, and extreme weather. The report then provides an assessment of public opinion in New Jersey about climate change and the willingness of residents to fund adaptation policy. Following the assessment, the report provides an analysis of population vulnerability to climate change impacts. The report concludes with the findings of a seven-month stakeholder outreach process that was designed to gather the views of lay people and professionals in a wide range of specialized fields . Outreach was also conducted for issues that permeate multiple sectors: emergency management and vulnerable populations.

• Increasing Precipitation Events 

Recent studies project an increase in the intensity and frequency of precipitation events that lead to more flooding and an increased potential of landslides. The Climate Change in New Jersey: Trends and Projections report by the NJ Climate Adaptation Alliance (http://www.precaution.org/lib/njcaa-trends-and-projections.pdf) cites an increase in the amount of total precipitation falling during 1% (100-year) storm of 54%, and projected increases of up to 3 to 4 inches over current rain events. The 1% storm is also projected to occur more frequently, happening every 35 to 55 years by 2050 and every 15 to 35 years by 2100.

• Increasing Floodplains

While not specific to New Jersey, the Impact of Climate Change and Population Growth on the National Flood Insurance Program through 2100 report produced for the Federal Emergency Management Agency (FEMA) in 2013 projects the riverine floodplain associated with the 1% storm to grow by 45% nationally by 2100. Further, the typical coastal Special Flood Hazard Area is projected to increase by 55%, and likely more for the Atlantic coast. (See http://www.aecom.com/News/Sustainability/FEMA+Climate+Change+Report)

• Repetitive Loss

According to the National Flood Insurance Program’s Claim Information by State report (http://bsa.nfipstat.fema.gov/reports/1040.htm) of November 30, 2014, New Jersey recently passed Texas as the second highest ranked state in FEMA total loss payments with $5,622,667,976.21 in losses. New Jersey is the fourth highest ranked state in the total number of losses at over 188,000. While these losses are not limited to New Jersey’s coastal zone, the statistics are indicative of the increasing risks to natural hazards.

• Saltwater Intrusion 

The confined aquifers of the New Jersey Coastal Plain are a major source of water supply for New Jersey, providing the majority of water to the southern region of the State. Steadily increasing use of these aquifers has caused progressive declines in water levels in some areas and saltwater intrusion in other areas. The presence of and potential for saltwater intrusion represents a significant limitation on water-supply development in the confined aquifers. Active intrusion has been documented in the Raritan Bay area, the Cape May Peninsula, and the Delaware Bay area, all in New Jersey’s Atlantic Coastal Plain province. The Winter-Spring 2014 volume of Unearthing New Jersey – a newsletter published by the NJ Geological and Water Survey – includes an article titled, Mapping, Monitoring and Managing Cape May County’s Groundwater Resource that summarizes the current state of the issue in Cape May County. (http://www.state.nj.us/dep/njgs/enviroed/newsletter/v10n1.pdf)

Rethink Energy NJ is lying to and manipulating you for their own selfish reasons

At this point, anyone who applauds the Christie DEP has Zero credibility

For many months, I’ve ranted against the incompetence and mendacity of some of the “leaders” of the anti-pipeline activists.

Most all of that was targeted at the “Rethink Energy NJ” campaign, who are leading the charge against the PennEast pipeline.

My criticism has been premised on an assumption that the problems were primarily a function of incompetence or lack of experience or political misjudgments (as they say, legitimate differences over strategy and tactics, not goals and objectives).

At worst, I thought that perhaps they were greedy in trying to control the access to Foundation grants and wealthy donors, and were being opportunistically entrepreneurial in their greed.

But, I assumed that they really did want to stop the pipelines, but were just doing a very poor job of it.

Today, they’ve gone over the line into knowingly and actively causing harm – including hijacking other pipeline opponents and misleading people about basic political and regulatory reality.

I think the phrase “useful idiots” is apt.

Join the 6 other YouTube people and take a good hard look at what co-opted, mendacious, timidity looks like – watch.

The thought that the Christie DEP is a friend of the environment and willing to fight big gas corporations – and that they should be APPLAUDED – is BIZARRE.

That is an incompetent, incredibly naive, and warped interpretation of the recent DEP letter to FERC on holding a public hearing on wetlands permits.

A few historical facts are in order for Ms. Cronheim:

DEP is working with Transco to issue the Clean Water Act Section 401 WQC approval, and with zero pushback from activists or press coverage. Transco’s July 1, 2016 letter to FERC documented that:

Transco submitted its FWWIP application in July 2015 and continues to work with NJDEP to resolve outstanding issues.

Just in case some anti-pipeline people out there still believe that DEP is their friend, a few facts:

1. Governor Christie’s Energy Master Plan supports significant expansion of gas infrastructure – pipelines and power plants. DEP answers to the Governor.

2. The DEP and the BPU approved the SJG Pinelands Pipeline, the SRL pipeline, and all others that I am aware of. Although by law BPU is an independent regulatory commission, the BPU effectively reports to the Governor.

3. DEP would never contradict the Governor and a sister State Agency.

4. DEP Commissioner Bob Martin is a former corporate energy consultant who is very pro energy industry and pro-gas.

5. DEP Commissioner Martin takes the position – incorrectly – that FERC preempts DEP environmental permitting.

In recent testimony to the Legislature, Martin said:

They (FERC) are the overall controlling entity on it at the end of the day. They could over-ride anything we could even do from the State of New Jersey. […]

We can not fight that .. If we did reject a pipeline it would end up in court very quickly.

6. Martin’s incorrect view on preemption is echoed by Democratic lawmakers, including Assemblwoman Liz Muoio, who works closely with the PennEast activists.

At a recent legislative hearing, Muoio whined about NJ’s powerlessness:

… there is little we can do as a State to stop them [FERC].

How could Muoio, who works closely withPennEast opponents, possible have that false legal view?

Who is whispering those lies in her ears? (Answer: Dale Florio).

Who has failed to educate her – and fellow activists, the press, and the public – on the law of Section 401 of the Clean Water Act? (Answer: Rethink NJ, Cronheim and Company).

7. Lastly, DEP has been a rubber stamp and cheerleader for pipelines.

If you doubt that, just recall their performance before the Pinelands Commission in support, see:

• DEP Does a Cameo at Pinelands Pipeline Farce

The only way DEP does the right thing is in response to huge political pressure mounted by pipeline opponents.

That has not happened –

These are facts – yet Ms. Cronheim wants to APPLAUD this?

Sprawl destroys rural character and will not revitalize downtown New Egypt

Homeowners subsidize developer & pay to build, connect to & operate new sewer system

I don’t think Plumstead would be jumping up and down for joy to have 450 homes built here, if there wasn’t an over-riding need for a sewer system ~~~ Robert Calabero, Lennar (6/21/16)

The Lennar Development Corporation is seeking a “General Development Plan” (GDP) approval from the Plumsted Land Use Board (Board) for a 454 unit development on an approximately 180 acre parcel of active farmland adjacent to the Crosswicks Creek, known as “Greenbriar at Crosswicks”.

The proposed development is intended to finance the new sewage treatment plant and sewer system, allegedly necessary to spur downtown revitalization of New Egypt.

Somehow, Plumsted officials managed to get an active farm mapped into a designated “Downtown Redevelopment Zone” – a blatant abuse of the intent of the NJ Redevelopment Law, which targets blighted properties and promotes public subsidies to private redevelopers.

During the initial presentation of the development to the Board on June 21, 2016 (see set up story), there were some remarkable things said – including physical threat by the Board Chairman and verbal threats from the Lennar spokesman.

*(The Chairman also interrupted my testimony and made 2 significant factual errors that must be corrected in the record.  The first regards NJ DEP stormwater recharge requirements @NJAC 7:8-5.4; 5.5 and 5.6, which he mistakenly claimed were Pinelands requirements that did not apply. The second error was the Chairman’s claim that the law prohibited the Board from considering fiscal impacts. Lennar’s team made a legal error via a false challenge of my “standing” to testify because I was not a resident. That too must be corrected in the record.) More to follow on all that in a future post.

There were also some amazing statements by the Lennar project team.

The project manager and spokesperson for Lennar, Tri-State Regional Manager Mr. Robert Calabero, made the “real” objective perfectly clear in his amazingly revealing testimony to the Board on June 21 in this exchange, provided under sworn oath: (verbatim, based on a recording of the hearing I obtained via OPRA. Emphases are mine, based on inflection of Calaberos’ voice. MP3 provided upon request, I am trying to post it):

Question: As the redeveloper here, how do you think this project integrates with the goals of upgrading and revitalizing the downtown area?

Response by Calabero: Well, the town, in my judgement, needs this project in order to fund what it really needs, which is a sewer system. And that’s really the reason why I think we’re here.

I don’t think Plumstead would be jumping up and down for joy to have 450 homes built here, if there wasn’t an over-riding need for a sewer system to help them revitalize their downtown and to help improve the vitality of the waterbodies they have.

So, with that said, they put a lot of work and effort into getting to a point where its possible to have a sewer system, and we’re happy to be a partner with them and to try to make it financially feasible for them to execute.

In other words, Calabero virtually admitted that the people of Plumsted would normally oppose such massive new sprawl development, if not for a desperate water quality problem due to failing downtown septics and cesspools and the false promise of redevelopment (and implied subsidies to construct the new sewer plant).

Confirming our point about DEP reversing over 20 years of sound watershed planning and increasingly stringent “anti degradation policy” under the Clean Water Act by discouraging new sewage treatment plants on low flowing streams to serve new sprawl development on farmlands, Mr. Calabero stated he had 30 years of professional experience, and that the recently issued DEP sewage treatment plant permit was “the first of its kind” that he was aware of in his entire career.

At the hearing, I testified and made 17 specific recommendations, most of which were rejected by the Chairman of the Board as outside the scope of the Board’s jurisdiction or otherwise “prohibited by law” (that is a quote by the Chairman in response to my testimony on the economic and fiscal impacts of the sewer plan and proposed development.) I’ll post on these points in future.

But for now, I just want to provide some information that those concerned about this project can use to pose questions to the Board and/or to flag deficiencies in the Lennar GDP application and/or urge the Board to reject or modify the Lennar proposed General Development Plan (GDP).

Here are the relevant purposes – i.e. the goals and objectives of the NJ Municipal Land Use Law (NJSA 40:55D-1 et sq.).

Note the broad consideration given to energy and natural resources, the explicit objective to “n. To promote utilization of renewable energy resources” and the equally broad objective of protecting the environment.

That broad language means that Lennar and the Board must consider and address things like climate change (greenhouse gas emission and adaptation to projected impacts, like extreme weather as a “natural disaster”), carbon footprint, mitigation or offset requirements for emissions, energy efficiency, inclusion of solar and geothermal renewable energy resources, electric car infrastructure, water conservation, recycling, water quality and flow impacts on Crosswicks Creek, et al.

a. To encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare;

b. To secure safety from fire, flood, panic and other natural and man-made disasters;

c. To provide adequate light, air and open space;

d. To ensure that the development of individual municipalities does not conflict with the development and general welfare of neighboring municipalities, the county and the State as a whole;

e. To promote the establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods, communities and regions and preservation of the environment;

f. To encourage the appropriate and efficient expenditure of public funds by the coordination of public development with land use policies;

g. To provide sufficient space in appropriate locations for a variety of agricultural, residential, recreational, commercial and industrial uses and open space, both public and private, according to their respective environmental requirements in order to meet the needs of all New Jersey citizens;

h. To encourage the location and design of transportation routes which will promote the free flow of traffic while discouraging location of such facilities and routes which result in congestion or blight

j. To promote the conservation of historic sites and districts, open space, energy resources and valuable natural resources in the State and to prevent urban sprawl and degradation of the environment through improper use of land;

[k. – l.]

m. To encourage coordination of the various public and private procedures and activities shaping land development with a view of lessening the cost of such development and to the more efficient use of land;

n. To promote utilization of renewable energy resources

Because Lennar is seeking a GDP approval, here are the relevant requirements in the MLUL for a General Development Plan (GDP) – note especially the “fiscal report” requirements in 40:55D-45.2 j. below.

The fiscal impacts on taxpayers and ratepayers and users of the new sewer system must be considered.

The total costs of the sewer system are not known by the community. The total costs of financing the system through bonds and total annual debt service payments are not known by the community.

The costs to homeowners and businesses to connect to the sewer system – known as a “connection fee” – and monthly sewer bills are not known by the community.

The financial risk of relying heavily on Lennar’s development to finance this system are not known to the community.

I am now reviewing the complex 90 page Redevelopment Agreement with Lennar, which suggests that Lennar will pay $19,500 per unit housing at the time those housing units receive their final Certificate of Occupancy (CO).

I have not yet seen how these payments cover the total capital and operating costs of the complete new sewer plant and sewer system project and the debt service on the bonds, from a cash flow perspective, or how these costs and financial risks are allocated to the community in the form of user fees, connection fees, and/or local property taxes.

What I do know is that these fiscal issues and financial risks are relevant and within the scope of the Board’s jurisdiction, because the GDP section of the MLUL includes

j. A fiscal report describing the anticipated demand on municipal services to be generated by the planned development and any other financial impacts to be faced by municipalities or school districts as a result of the completion of the planned development.

See relevant GDP provisions below (emphases are mine):

40:55D-45.2. Contents of general development plan. A general development plan may include, but not be limited to, the following:

[a.]

b. A circulation plan showing the general location and types of transportation facilities, including facilities for pedestrian access, within the planned development and any proposed improvements to the existing transportation system outside the planned development;

c. An open space plan showing the proposed land area and general location of parks and any other land area to be set aside for conservation and recreational purposes and a general description of improvements proposed to be made thereon, including a plan for the operation and maintenance of parks and recreational lands;

d. A utility plan indicating the need for and showing the proposed location of sewage and water lines, any drainage facilities necessitated by the physical characteristics of the site, proposed methods for handling solid waste disposal, and a plan for the operation and maintenance of proposed utilities;

e. A storm water management plan setting forth the proposed method of controlling and managing storm water on the site;

f. An environmental inventory including a general description of the vegetation, soils, topography, geology, surface hydrology, climate and cultural resources of the site, existing man-made structures or features and the probable impact of the development on the environmental attributes of the site;

g. A community facility plan indicating the scope and type of supporting community facilities which may include, but not be limited to, educational or cultural facilities, historic sites, libraries, hospitals, firehouses, and police stations;

h. A housing plan outlining the number of housing units to be provided and the extent to which any housing obligation assigned to the municipality pursuant to P.L. 1985, c. 222 (C. 52:27D-301 et al.) will be fulfilled by the development;

i. A local service plan indicating those public services which the applicant proposes to provide and which may include, but not be limited to, water, sewer, cable and solid waste disposal;

j. A fiscal report describing the anticipated demand on municipal services to be generated by the planned development and any other financial impacts to be faced by municipalities or school districts as a result of the completion of the planned development. The fiscal report shall also include a detailed projection of property tax revenues which will accrue to the county, municipality and school district according to the timing schedule provided under subsection k. of this section, and following the completion of the planned development in its entirety;

k. A proposed timing schedule in the case of a planned development whose construction is contemplated over a period of years, including any terms or conditions which are intended to protect the interests of the public and of the residents who occupy any section of the planned development prior to the completion of the development in its entirety;

More to follow – please attend and speak up at the hearing on July 5 – if only to ask questions!!!!

* Denotes an update