WolfeNotes.com

A NJ Mystery: Murder on the Delaware Express

[Update: 9/9/12 The lack of a quorum issue I discuss below and at the meeting was later addressed in this story:  Delaware & Raritan Canal Commission in need of members – end update]

The D&R Canal Commission held their regular monthly meeting this morning.

I went to update the Commission on important recent Bull’s Island developments and to followup on the commitment made at their last meeting.

At that previous meeting, the Commission reached a consensus to write a letter to DEP asking the Department to make a public presentation of their plans for Bull’s Island.

Curiously, that is not exactly what the minutes of that meeting reflect. There is no mention of the letter. The Commission secretary keeps very accurate and comprehensive minutes, so I am sure that that oversight is no accident. But I am getting ahead of myself.

Here’s what went down this morning and why it is important.

In an unusual private meeting before the public meeting, the Acting Chairman resigned.

The DEP representative – a voting member of the Commission – did not even show up.

While DEP Commissioner Martin has plenty of time to do multiple self promoting press photo ops, he can’t see that his representative attends Commission meetings?

As a result, the Commission lacked a quorum and could not do official business and could not formally act on any project review or approval.

Worse, in another unusual move, the only conservation oriented member of the Commission, Allison Mitchell, recused herself from any involvement on Bull’s Island (more on the significance of that below).

Under Commission rules, which include a “deemer” clause, if the Commission fails to act, any project is automatically approved 45 days after a complete application is submitted.

[Update: I have been told that the deemer clause does not apply to public projects, but have seen nothing in writing to confirm this.]

In the event that the Commission is unable to establish a quorum, they can not act.

[Update: during the August 15 meeting, there was talk of the doctrine of “necessity” with respect to quorum, recusal and voting – it sounded very troubling. More to follow on that.]

There are vacant Commission member slots that have not been filled by Governor Christie.

As you will recall, the Governor and DEP Commissioner Martin previously tried to abolish the Commission. That move was blocked by the legislature.

Since then, unable to kill the Commission outright, DEP has dragged its feet in approving staff for the Commission.

So, with: 1) the resignation of the Acting Chairman of the Commission, 2) Gov. Christie’s failure to appoint Commission members, 3) the DEP member a no-show, 4) huge delays in staffing the Commission, and 5) the unusual recusal of the only pro-conservation vote on the Commission, it sure looks like Christie and DEP Commissioner Martin are quietly killing the Commission politically behind the scenes by making it impossible for the Commission to meet and do their work.

Could all this just be a coincidence? No way.

How convenient just at the time the Commission begins to raise issues regarding review of the DEP controversial Bull’s Island clearcut of killer trees!

It is technically possible – and not inconceivable – that DEP could file a complete Bull’s Island clearcut application and the Commission would be unable to form a quorum to review it and it could be automatically approved. 

Aside from all that, here’s what I learned at the meeting with respect to Bull’s Island:

1. The Bull’s Island State Park Supervisor (a DEP employee) said nothing about Bull’s Island during her Monthly Report to the Commission. Mum’s the word! So much for transparent government and an open and accessible planning process.

2. The NJ Water Supply Authority rep. said nothing about Bull’s Island during his Monthly Report to the Commission, despite the fact that the US Army Corps of Engineers issued a cease and desist order to NJWSA because the USACE dredge permit had expired. NJWSA is now seeking a new dredge permit, and that is relevant and should be reported to the Commission because the dredge will impact the canal and Bull’s Island.Again, the oversight is no accident – mum’s the word!

3. Executive Director Dooley briefed the Commissioners on Bull’s Island related items.

Curiously, she somehow forgot to mention the Resolution adopted by Alexandria Township opposing the DEP Bull’s Island clearcut plan and requesting an open public planning process. When I called her on it, Dooley acknowledged that she had received the Resolution – which both I and the Town Clerk sent her.

Again, ED Marlen Dooley is a lawyer, and like the Secretary, is very thorough and precise, so I doubt that this omission was an accident.

But, without my prompting, Dooley did note that she received a call from DEP Assistant Commission Boornazian, who advised her that DEP would not pursue emergency land use permits and would be willing to meet privately with her and certain Commissioners to discuss DEP’s Bull’s Island plans. Dooley said that DEP is not ready to go public yet.

I asked if the meeting with the Commission would be public – Dooley said no. How nice!

Since everyone else was being so circumspect on Bull’s Island, during the public comment session, I made the Commission aware of the following recent developments:

1.  Alexandria Towsnhip passed a Resolution, linked to the Lower Delaware Wild and Scenic River Management Plan. The Resolution opposes a clear-cut and requests a public planning process to develop a mangement plan;

2. The National Parks Service supervised Lower Delaware W&S management committee will meting on June 28 in Frenchtown (7 pm) and Bull’s Island issue is on the agenda. NPS staff contact out of the Philly Office is Julie Bell;

3. DEP Parks and Forestry posted a notice on their website  – it mentions the formation of an internal “coordinated team” that is working to develop a “management plan”, but says NOTHING about public involvement in development or review of this plan. 

I filed an OPRA requesting relevant documents.

4. I spoke with the USACE – they issued a ceae and desist order to NJWSA due to expired permits. NJWSA is now seeking new permit.

I filed a federal FOIA requesting relevant documents.

5. I then raised major concerns about the recusal of Ms. Mitchell.

In her day job, Ms. Mitchell is Policy Director of the NJ Conservation Foundation (NJCF).

Mitchell stated that NJCF staff was involved and the organization was taking a strong position on Bull’s Island and therefore she felt she needed to recuse.

I noted that:1) Ms. Mitchell is the only conservation oriented public member and voice on the Commission, 2) conservation organization membership is a cognizable factor under the statute regarding Commission appointments, and 3) Mitchell’s recusal would have dramatically negative impacts on the public deliberations and harm the public interest, particularly in light of recent inability to form a quorum.

I questioned the rationale and legal basis for the recusal, and noted that it would set a very bad precedent for other bodies, where members of conservation groups serve (i.e. Tracy Carcluchio of Delaware Riverkeeper sits on the Highlands Council, Emile Devito of NJCF sites on several bodies, and I’m sure there are many, many other examples).

If Ms. Mitchell steps down in this case, she opens up all those others to attacks that force them to recuse and neuter their voices and votes.

This would be a very bad policy and practice, statewide.

The Commission’s Counsel agreed with my request to reconsider and at this point Ms. Mitchell’s recusal is temporary”.

He did not agree to reduce the rationale to a formal legal opinion – and Commissioner Knights objected to my request for that.

We’ll keep you posted as this develops –

In the interim, I strongly encourage folks to contact friends and:

• call and write the Governor (State House, Trenton NJ – 609-292-6000)
• call or write and your legislators
• call or write Bob Martin, DEP Commissioner
  401 E. State St.
  7th Floor, East Wing
  P.O. Box 402
  Trenton, NJ 08625-0402
  phone: (609) 292-2885
• Members of the D&R Canal Commission 
  Martin D. Jessen, Acting Chairman (just resigned)
  Bob Martin, Commissioner, DEP
  David H. Knights
  John S. Loos
  Phyllis L. Marchand
  Alison Mitchell
  Tony mack (Mayor of Trenton)

[PS – just noted this in prior May 22 minutes and had to share  🙂

 Mr. Knights thanked Mr. Wolfe for bringing the issues at Bulls Island to light. Mr. Wolfe agreed with Mr. Knights that the corrective measures at Bulls Island were good and noted that a problem had been identified and it was getting corrected.

Dear Readers:

This post is a mix of good news and bad, concluding with a request for help.

The good news is that the blog is increasing in hits, having a positive impact, and making a difference.

The bad news is that I must apologize for the recent reduction in quality of photographs. Let me explain and make a request for help.

Several weeks ago, I got a notice from my original blog host service that I had greatly exceeded my bandwidth – largely due to the number of high quality photographs I post, which are large files.

As a result, I had to change servers, and lost about 2 weeks of posting while the change was made (that’s why all the old posts have all those random weird symbols that look like capital A’s. The transition did not work out completely right).

Well, today I got an overuse warning from my new server – imposing significant additional bandwidth use charges (lesson learned: always read the fine print in the host agreement! But I would not have understood it anyway! Guess I’m experiencing the shock new cell phone users got for excessive minutes).

At any rate, the new server costs significantly more than the old one and now the new extra bandwidth charges come at a really bad time financially.

To avoid these charges, I am forced to reduce the quality of the images (my tech advisor, my son, tells me that the bandwidth is a function of the size of the image, the image quality, and the volume of hits to the site. I can control only the image quality variable, and have gone back and reduced the size of some of the photos. This has visibly reduce quality (jut look at Senator Weinberg!). Obviously I want to increase hits, but that is uncontrollably increasing my costs).

This blog started 5 years ago by invitation of the Star Ledger to write as the environmental voice on their new “NJ Voices” page.

After I was kicked off the Star Ledger (great story there), I started my own blog Wolfenotes.com.

I do this blog as an adjunct to my work – I spend a lot of time on it, and work hard to get it right, but I love doing it and am not paid to do it.

I assume that readers get some value or enjoyment from the material I post.

As a matter of principle, I’ve never asked anyone for money or considered making this a subscription service.

In an effort to avoid commercialization at all costs, I have refused many solicitations by internet advertisers.

To be blunt, I barely keep my head above water financially.

With all that in mind and the new server and increasing bandwidth charges, I thought I’d abandon my pride and make my first appeal to readers for funding.

So, readers out there, if you enjoy this blog and would like to support our efforts and have some change to spare, please consider making a contribution. If you can afford it, send whatever you feel is appropriate to:

Bill Wolfe

PO Box 112

Ringoes, NJ 08551

Much appreciated.

Note: Any assistance is NOT TAX DEDUCTABLE , purely voluntary, and comes with no strings attached.

(ps – no pipebombs, please. And that means you “Grandfather of NJ Toxics” Hal Bozarth, and Benton and Brogan and Engenton and the rest of “murderers row”!)

All the News Too Hot and Complex to Print

[Update below]

You won’t read about any of the following stories in your newspaper – they involve Trenton legislative and regulatory actions too complicated and too controversial for the depleted and demoralized State House press corps to even cover.

No, you won’t read anything about the stunning arrogance and corruption of the NJ legislature, in pushing an anti-environmental agenda just days after environmentalists held their “Trenton Lobby Day”, where hundreds of citizens turned out to support the environment.

You will hear nothing about major corporations, like Dupont, that are corrupting science and attacking public drinking water protections. Nope. Not that.

Nothing about “privacy” loopholes in NJ public records laws that protects corporate interests and allows DEP to meet in secret with corporate lobbyists, where they can negotiate multi-million dollar enforcement and regulatory relief deals free from any transparency, accountability or public oversight.

No, none of that stuff. But you will read puff pieces like this, however, that dupe the public and provide cover for the rollbacks underway across a series of environmental program areas.

So, enough of the context –  let’s get started.

I wrote yesterday about the package of bills on Barnegat Bay (that’s the half step forward)

So, today I write about other legislative actions – the three miles back.

Each one of these stories warrants media attention, yet these huge trees fell in Trenton’s forest, and no news outlets were there to cover them:

I)  Forest “Stewardship” – Commercial Logging on Public lands

Question:

What do so called pro-environment Senate Environment Committee Chair Bob Smith, South Jersey political boss Senator Norcross, and right wing Warren County Republican ALEC Chairman Senator Oroho have in common?

Answer:

Sponsorship of a “forest stewardship” bill (S1085 [SCS]) bill that declares:

forest lands are an irreplaceable component of the environment and worthy of conservation and stewardship

Right.

We’ve written about major flaws in the bill (see this and this and this and this).

The bill was released from the Senate Budget and Appropriations Committee yesterday and is now before the full Senate. I sense an effort to push this bill through by June 30 under cover of the chaos of budget deals.

II)  Red Tape Attack Continues Un-abtated

A trojan horse bill (A2315) that would allow the business community, under the slogan “regulatory flexibility”,  to challenge and gridlock virtually all DEP rules, was released by the Assembly  Regulatory Oversight Committee yesterday.

The bill has its roots in right wing ALEC ideological attacks on government and environmental regulation. It has sponsorship by a Democrat, who was praised on lobby day. The Red Tape attack is Bipartisan, as we’ve written.

We previously wrote about serious flaws in the bill – see: Regulatory Flexibility Bill A Formula for Gridlock and Rollback

Anything could happen between now and June 30 – who will tell the people?

III)  Huge Costs of Energy Deregulation Exposed – Law Stifles Competition

Once in a rare blue moon, the doors of truth open wide in Trenton, exposing the massive ripoff and corporate corruption of what I have called the Twilight Zone of Energy Policy.

One of those rare truth moments came about yesterday, during testimony in the Senate Environment Committee on A2316 [1R], a bill that would  authorize municipal and rural electric cooperatives to establish shared municipal energy services.

Power to the people – right on!

According to the OLS Fiscal analysis, the bill would save consumers up to $67 million, in just 9 small towns!

If public power were done on a larger scale, the consumer savings would be huge – possibly billions per year! Do the math.

The testimony on the bill revealed that municipal cooperatives produce significantly cheaper power – I think the price was $94 per megawatt by the public power versus $176 per MW at the private investor owned monopolies!

The private investor owned power monopolies were forced to admit – openly – that they can not compete on price with public power and that the purpose of the energy deregulation legislation was to stifle competition!

It’s Chinatown, Jake!

Click This Link to LISTEN TO THAT AMAZING TESTIMONY!

(oh, I forgot to mention that someone got to the sponsor of the  Senate version, Senator Beach, who took the highly unusual step and killed his own bill. And Beach didn’t even have the balls to show up to the hearing and explain himself!)

IV)  Turning Back the Clock on Fisheries Management

Again, under the guise of  the”flexibility” slogan, an Assembly Committee approved a Resolution (AR 32 [1R]in support of Congressman’s Pallone’s federal bill with the Orwellian title “Flexibility and Access in Rebuilding American Fisheries Act of 2011.”

The Resolution appeared to have been written by shortsighted and extreme anti-regulatory fishing lobbyists. There were flat out errors that were used to attack federal fisheries scientists, in a transparent  attempt to discredit successful fisheries management.

I testified to warn the Committee that the Pallone bill is seriously flawed and would turn back the clock on fisheries management to the bad old days, and reverse tremendous progress in US fisheries management that has turned the corner in limiting over-fishing of many species.

The current law already provides adequate flexibility and explicitly allows consideration of social and economic factors in fisheries management decisions. There already is flexibility to extend rebuilding plans for overfished stock beyond 10 years.

The result of the Pallone bill would be to promote more overfishing.

The summer flounder management is a huge success story.

Flounder populations have been rebuilt because the National Marine Fisheries (NMFS) scientists and Mid Atlantic Regional Council imposed strong science based quota’s on catch. Had NMFS and the Council caved to pressure by fishing interests, the stock would have continued to be over-fished.

Instead of attacking NMFS scientists and federal fisheries management, why aren’t recreational fishermen bitching about the fact that commercial fishing gets allocated 60% of the  quota? That commercial fishermen can take smaller 14 inch fish? The huge by catch in the scallop industry kills huge numbers of flounder that are not reflected in the quota? Why are there no funds to support fishery science and management in NJ?

None of that is fair or good management – and fixing all those problems would benefit recreational fishermen and the health of the fishery. Why is Jimmy D. at RFA silent about all that?

For those seeking additional analysis of the Pallone legislation, please see my old friends at PEW’s end over-fishing campaigns.

[full disclosure: I worked as Pew’s mid-Atlantic region fisheries manager for a year]

[Update: Oh darn! Did I forget to mention that all this – and more – are OK and worth it because Dems are again going to pass safe and symbolic fracking ban legislation that they know the Governor will veto? (that’s snark!)

Fracking is sucking up huge resources and taking the oxygen out of Trenton, providing cover and at a huge cost.]

DEP: Bay Water Quality “did not cross any barriers of impairment”

Here we go again:

“We have the data already. We’ve had it for years”, said Michael Kennish, a research professor who heads Rutgers University efforts to study Barnegat Bay’s pollution problems. “We know what the problems are. We need to have big stuff done, mandates and requirements imposed by DEP.”  ~~~ Asbury Park Press. 8/6/2010, story by Kirk Moore.

It’s deja-vu all over again:

A similar [TMDL] plan is needed for Barnegat Bay, said Bill Wolfe of Public Employees for Environmental Responsibility, a former DEP official. In addition to the Chesapeake model, New Jersey can look to Florida, where EPA administrator Lisa Jackson is seeking to enforce phosphorus limits on Florida to clean up the Everglades, Wolfe wrote on his blog wolfenotes.com.

“I’m not afraid to listen to Bill Wolfe when he has a good idea,” [Senator] Smith said. Wolfe says he would like the Legislature to take a stronger stance with a bill to require action by the DEP. ~~~  Kirk Moore of the Asbury Park Press story on 9/27/10

Going in circles, today the Senate Environment Committee again heard and released the package of Barnegat Bay clean water and storm water infrastructure bills that Governor Christie vetoed last time, including the TMDL bill. 

As in prior hearings, DEP obfuscated and dissembled regarding the TMDL program.

DEP simply misled the Committee about:1) the current status of water quality monitoring data, 2) the adequacy of current surface water quality standards, 3) whether DEP had assessment methods that accurately evaluated the ecological health of the bay; and 4) how the science, the regulations, and the methods reconcile a huge contradiction: which is that the science demonstrates that the Bay is literally dying and the regulators insist that the Bay is healthy (given current standards and assessment methods).

A TMDL – for “Total Maximum Daily Load” – is the mandatory, science based cleanup program under the Clean Water Act for polluted waterbodies that do not meet current standards, known in regulatory speak as  “impaired waters” .

There was excellent testimony from the head of Maryland’s TMDL program as to why the TMDL is the way to go (listen to it here).

But NJ DEP refused – and was not compelled – to testify about the NJ TMDL program.

The NJ DEP’s own Science Advisory Board (SAB) has said the theTMDL approach is the way to go and “makes the most sense” in their Report last year to DEP Commissioner Martin on the DEP’s nitrogen model. I quote from the SAB Report:

“The most sensitive receptors for for excess nitrate are likely to be estuaries and low nutrient coastal plain streams. Given the nature of estuaries, a load-based regulatory approach (TMDL type approach) would make the most sense. Such an approach, furthermore, would be based on total nitrogen, not nitrate alone. (@ page 8)

“did not cross any barriers of impairment”.

Here is my followup note to Chairman and sponsor Senator Smith:

Senator – the material below is from DEP’s website. It explains the step by step sequence of data monitoring, water quality standards, assessment, impairment determination, and TMDL. I have excerpted and boldfaced the text that explains why DEP can not make an “impairment” determination for Barnegat Bay – there is plenty of science and monitoring data that proves the Bay is “WQ impaired”. But DEP can not make this regulatory determination because DEP lacks both SWQS and a WQ Assessment methods document. If DEP were serious, they would have revised the assessment methods document and the SWQS, I’ve testified to this this numerous times. Here it is again:

“The Integrated Water Quality Monitoring and Assessment Methods (Methods Document): Details the assessment methods used to by the Department to generate the Integrated Report.”