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The park is usually bustling – I was able to take these shots devoid of people early in the morning shortly after a heavy rain.

“He Enforced the Law Impartially”

“He Defended It Courageously”

“He Proved Incorruptible”

General Smedley Butler, USMC, is probably best known for the phrase “War is a Racket”.

He is far less well know for his revelation of a planned coup against FDR:

In 1933, he became involved in a controversy known as the Business Plot, when he told a congressional committee that a group of wealthy industrialists were planning a military coup to overthrow Franklin D. Roosevelt, with Butler selected to lead a march of veterans to become dictator, similar to other Fascist regimes at that time. The individuals involved all denied the existence of a plot and the media ridiculed the allegations. A final report by a special House of Representatives Committee confirmed some of Butler’s testimony.

But, he is probably least well know as the head of the Philadelphia Police Department:

At the urging of Butler’s father, in 1924, the newly elected mayor of Philadelphia W. Freeland Kendrick asked him to leave the Marines to become the Director of Public Safety, the official in charge of running the city’s police and fire departments. Philadelphia’s municipal government was notoriously corrupt and Butler initially refused. Kendrick asked President Calvin Coolidge to intervene. Coolidge contacted Butler and authorized him to take the necessary leave from the Corps. At the request of the President, Butler served in the post from January 1924 until December 1925.^[4] He began his new job by assembling all 4,000 of the city police into the Metropolitan Opera House in shifts to introduce himself and inform them that things would change while he was in charge. He replaced corrupt police officers and, in some cases, switched entire units from one part of the city to another, undermining local protection rackets and profiteering.^[37][38]

Ironically – and of current relevance – he was fired for aggressive military style police tactics that violated civil rights:

Eventually Butler’s leadership style and the directness of actions undermined his support within the community. His departure seemed imminent. Mayor Kendrick reported to the press, “I had the guts to bring General Butler to Philadelphia and I have the guts to fire him.”^[

Who was it that said that the past is never dead – it’s not even gone?

Christie DEP Rollback Strategy Is Hidden In Plain Sight

DEP proposal is no minor “alignment”, it’s a big U-Turn

This is the final post in our series on the Christie DEP’s proposed  “overhaul” of the flood hazard rules, in anticipation of the Senate Environment Committee hearing on Monday 10/19/15 to consider SCR 180, a Resolution that would veto these regulations as “inconsistent with legislative intent”.

I had planned to include 2 additional posts: one on the reservoir designations and drinking water protections and the other on the Hunterdon County Delaware River tributaries that are ground zero in the PennEast pipeline debate. I will address each in future posts.

Today, we go deep into the weeds to explain why a Category  One (C1) stream buffer (known as  a “Special Water Resource Protection Area” (SWRPA) has far more regulatory protections than a “riparian zone”.

Yes, we know that many consider this worse than root canal. But the reason we must do this is because the DEP proposal would repeal the C1 SWRPA and replace it with a “riparian zone”.

Different Legal Bases and Water Resource Objectives 

Before we get into the weeds, we note the biggest difference between a SWRPA and a riparian zone:

A SWRPA is designed to protect water quality from non-point pollution runoff from development by preserving the natural vegetation along a waterbody, which filters pollutants before they enter the water.

A “riparian zone” is designed to reduce the risks of flooding by keeping development out of floodplains and reducing the volume of development in the floodplain that is at risk of flooding. These rules are related to water quantity.

Accordingly, the SWRPA protections are codified in the DEP’s storm water management rules (NJAC 7:8) and are linked and apply to the Surface Water Quality Standards’  “Category One“”exceptional” quality waters (see DEP FAQ on C1 buffers).

The “riparian zone” requirements are codified in the Flood Hazard rules NJAC 7:13 (aka as “stream encroachment”) and apply more broadly to almost all waters that present a flood risk (inland and coastal).

The Christie Rollback Agenda Revealed

To complicate matters, in 2008, DEP amended the Flood Hazard Rules by including the SWRPA rules in them – combining the water quality and flood risk objectives. New rules added hundreds of miles of new C1 streams, but they also significantly reduced the scope of the C1 program and ecological protections, making it far more difficult to designate additional C1’s. (see this rule adoption))

DEP is now using the overlap and inconsistencies between the two sets of different rules as a pretext to repeal the SWRPA protections, a longstanding desire of the development community.

As I’ve written, this rollback objective is revealed beyond a shadow of a doubt in the regulatory history (i.e. DEP rule proposals, public comments, and DEP response to public comments documents); in Governor Christie’s DEP Transition Report and in Executive Order #2. 

The rollback strategy is openly presented in the DEP Transition Report (see “Omnibus Rulemaking” on page 13)

• Reexamine buffer requirements in urban/disturbed areas and Planning Areas 1 and 2 designated for growth under the State Development and Redevelopment Plan (hereinafter referred to as the State Plan) as applied to wetlands, C-1 waters and potential Threatened and Endangered species habitat under Flood Hazard, Stormwater, and Wetlands rules.

Different Regulatory Standards and Protections

We will first present a list of key regulatory protections that SWRPA have, that riparian zones do not.

For those that would like to verify that, below I provide the full text of the SWRPA regulations @ NJAC 7:8-5.5(h), with boldface of the key provisions:

1. Disturbance is not allowed in a SWRPA area in the zone from 300 – 150 feet, unless an applicant can make a rigorous science based demonstration to DEP that the “functional value and overall condition of the special water resource protection area will be maintained”.

There is no similar regulatory protection in the riparian zone.

The riparian zone provides the opposite: there are allowable disturbances for various activities explicitly provided to accommodate development.

2. There is a flat out prohibition on disturbance of the SWRPA inside the zone of 150 feet to the stream, including a prohibition on location of storm water infrastructure.

The riparian zone does not include this restriction and provides the opposite: it allows stormwater infrastructure and development to occur inside this zone.

3. The SWRPA rules do NOT include a waiver provision. This effectively would force an applicant to prove an unconstitutional taking without compensation to a court of law.

The riparian zone explicitly provides a waiver and the proposal would weaken the waiver demonstration requirements.

4. The SWRPA rules do not allow mitigation to offset disturbance.

The riparian zone proposal allows mitigation to offset buffer disturbance.

5. Repeal of the SWRPA protects effects other important DEP rules and federal requirements.

The SWRPA requirements are linked to the DEP Municipal storm water permit requirements. This means that DEP permits can be used to require towns to adopt stream buffer ordinances that are consistent with the SWRPA 300 foot buffers.

The SWRPA are explicitly linked to the DEP Surface Water Quality Standards. This is a regulatory bridge between land use and water quality and it enables enfacement of SWQS on non-point sources of pollution.

The SWRPA are an EPA approved water quality “best management practice” (BMP) and are a key component of NJ’s “anti degradation policy” and “anti degradation implementation procedure” required under the federal Clean Water Act.

This provides a hook to federal review, federal funding, and EPA oversight in a host of federal Clean Water Act programs, including Section 303(d) TMDL, MS4 Municipal storm water permitting, Surface Water Quality Standards, NPDES,  Section 319 NPS programs, Section 404 and 401 Water Quality Certification, and Section 208 Water Quality Management Planning.

Repeal of the SWRPA provisions from the storm water rules has HUGE regulatory significance.

For the wonks, here is the regulatory text of SWRPA @ NJAC 7:8-5.5(h):

(h) Special water resource protection areas shall be established along all waters designated Category One at N.J.A.C. 7:9B and perennial or intermittent streams that drain into or upstream of the Category One waters as shown on the USGS Quadrangle Maps or in the County Soil Surveys, within the associated HUC 14 drainage. These areas shall be established for the protection of water quality, aesthetic value, exceptional ecological signifi-cance, exceptional recreational significance, exceptional water supply significance, and exceptional fisheries significance of those established Category One waters. These areas shall be designated and protected as follows:

Flood Risks Are Not Property and Not DEP’s To Tax, Bank, and Trade

The Legislature has Not Authorized A Flood Credit Trading Scheme

DEP Monetizes Flood Risk

ul·tra vi·res/ˌəltrə ˈvīrēz/

adjective

beyond one’s legal power and authority

The State Department of Environmental Protection (DEP) is not authorized to levy taxes, print money, create banks, or regulate financial products and services.

The Legislature has passed no such law delegating such broad and sweeping powers to DEP.

But that is precisely what DEP has done in a proposed regulation that would establish a flood credit mitigation and trading scheme and flood credit bank.  Look how DEP explains that huge policy expansion – buried in the fine print of a 900+ page rule proposal, justified as just some kind of minor bureaucratic “alignment”

The rules will require that the applicant provide riparian zone mitigation for all vegetation removed in excess of the limits.

Reflective of the alignment of the land use regulatory programs, riparian zone creation and preservation are proposed to be added as compensation alternatives, as these are compensation options for disturbance to freshwater wetlands and transition areas under the FWPA rules. Also, standards for riparian zone mitigation banks are proposed, similar to freshwater wetlands mitigation banks under the FWPA rules. (page 10)

Standards for riparian zone mitigation banks are also proposed to be adopted, which will encourage the development of banks similar to the freshwater wetlands mitigation banks. A definition for “mitigation bank” is proposed at N.J.A.C. 7:13-1.2, which mirrors the existing definition in the FWPA rules and proposed definition in the CZM rules, and which establishes the type of operation that may be undertaken to provide compensatory mitigation for disturbances to riparian zone vegetation under the FHACA Rules. (page 128)

“Mitigation bank” means an operation in which riparian zone vegetation is created, restored, enhanced, or preserved by a mitigation bank operator, for the purpose of providing compensatory mitigation for disturbances to riparian zone vegetation.

“Credit purchase” means the purchase of credits from a mitigation bank, as that term is defined at N.J.A.C 7:13-1.2, as a substitute for performance of creation, restoration, enhancement, or preservation by a permittee.

There’s just a slight legal problem with this DEP proposal: it has no legal basis!

The Freshwater Wetlands Act does in fact create a Wetlands Mitigation Council and authorize a wetlands mitigation trading scheme that can be implemented via freshwater wetlands permits.

But the Flood Hazard Area Control Act DOES NOT authorize a riparian compensation or trading scheme that can be implemented via stream encroachment permits.

DEP can’t simply say that they are “aligning” disparate wetlands and flood hazard programs and create a major new “riparian compensation” and “riparian trading” scheme out of whole cloth.

Just Write A Check To Destroy Stream Buffers and Increase Downstream Flood Risks

Here’s how this scheme would work:

Right now, it is illegal for a developer to cut down a forest and build within 300 feet of a Category One stream. DEP can’t issue a permit for that.

Under the proposal, the developer would now be allowed to do so by merely providing “compensation” and purchasing credits from the DEP created bank.

Meanwhile, not only is the environment destroyed, downstream properties face increased flood risk.

In proposing this scheme, without even an assertion of legislative authorization, DEP has used environmental regulatory power to require the flood hazard permit applicant to purchase credits, in certain cases.

DEP, by regulation, has created flood mitigation credits. Those credits are a fungible commodity that will have significant economic value.

DEP, by regulation, has created a market for valuing, banking, and transacting financial trades of this new economic commodity. DEP regulations provide oversight and enforcement power over this financial scheme.

In essence, DEP has used environmental regulatory powers, delegated  by the Legislature to reduce flood risks and protect water quality, to extract a tax on development, while increasing flood risks and creating more water pollution.

Make no mistake, the cost of a mitigation credit is no different, functionally, than a tax.

Disturbance of stream vegetation creates flood risks to people and property. DEP should set standards to prevent it and not issue permits  that would allow it.

It is bad enough that DEP is allowing huge increases in allowable destruction of stream vegetation. But it is an outrage for DEP to monetize flood risk and create a market trading scheme. That is not only illegal, it is immoral.

This is so over the top it is remarkable. Not since the Big Map has DEP so over-reached.

Perhaps DEP Commissioner Bob Martin didn’t get the memo from Gov. Christie regarding “no new taxes” and the Executive Order #2 mandate to provide”regulatory relief”.

The DEP proposal is not only blatantly illegal and immoral, it makes a mockery of Gov. Christie anti-tax and anti-red tape claims.

Easy Fodder for legislative Veto

On Monday, the Senate Environment Committee will hear a Resolution, SCR 180, to begin the process of legislatively vetoing this DEP proposed rule.

The first step in analyzing whether a proposed regulation is “inconsistent with Legislative intent” is to determine the specific legislative provision that provides authorization for the regulation.

In this case, because the proposed trading scheme lacks any legislative authorization – something the lawyers call ultra vires – by definition the DEP rule can not possibly be consistent with legislative intent and therefore must be inconsistent because there is no legislative intent!

The NJ Experience with trading schemes

Trading schemes have proven extremely controversial in New Jersey and nationally.

Most recently, Gov. Christie sees a hidden bureaucratic tax in the greenhouse gas “cap and trade” program:

Finally and importantly, RGGI does nothing more than tax electricity, tax our citizens, tax our businesses, with no discernable or measurable impact upon our environment.

While Gov. Christie may have acted unilaterally to exit from RGGI, the entrance was authorized by the Legislature.

So let me provide a few examples of how – in all cases – the legislature made findings, established policy, and and passed laws that authorized various forms of trading BEFORE they were implemented via regulation.

Power Plant Emissions Trading in the Regional Greenhouse Gas Initiative (RGGI)

Although DEP negotiated and Gov. Codey signed the original Memorandum of Understanding with Northeastern States to create the Regional Greenhouse Gas Initiative (RGGI), it took the Legislature to pass a law to authorize DEP to create a regulatory program to implement RGGI. The legislature found:

“Transfer of Development Rights” (TDR)

Here’s the State Agricultural Development Committee’s website:

On March 29, 2004, the New Jersey Legislature enacted the State Transfer of Development Rights Act.  This legislation made New Jersey the first state in the nation to authorize statewide comprehensive TDR enabling legislation.

The State TDR Act provided municipalities statewide with the ability to participate in both intra-municipal and intermunicipal development potential transfers. This bill also formalized the planning process required to enact TDR and mandated a list of planning documents required prior to adopting a TDR ordinance. To assist municipalities in planning for TDR, the Act also authorized the State TDR Bank Board to provide Planning Assistance Grants.

State TDR Act (N.J.S.A. 40:55D-13.7 et. seq.)
Requirements for TDR Establishment

NJ State TDR Bank Regulations (N.J.A.C. 2:77)

Pinelands Development Credits and Bank in the Pinelands Act

Here is authorizing language from the Pinelands Protection Act:

Highlands TDR and Development Credit Bank in the Highlands Act

The Highlands Act was based on the Pinelands Act. Here is the enabling authority in the Highlands Act

(1) The council may use the State Transfer of Development Rights Bank established pursuant to section 3 of P.L.1993, c.339 (C.4:1C-51) for the purposes of facilitating the transfer of development potential in accordance with this section and the regional master plan. The council may also establish a development transfer bank for such purposes.

Wetlands Mitigation Trading, Mitigation Bank, and Mitigation Council in the Freshwater Wetlands Protection Act

DEP is proposing a huge expansion of the Freshwater Wetlands Act legislatively authorized mitigation scheme to all waters of the state.

Here is DEP’s authority under the Freshwater Wetlands Act -notice this says nothing about flood mitigation:

§ 13:9B-13. Mitigation of adverse environmental impacts

a. The department shall require as a condition of a freshwater wetlands permit that all appropriate measures have been carried out to mitigate adverse environmental impacts, restore vegetation, habi- tats, and land and water features, prevent sedimentation and erosion, minimize the area of freshwa- ter wetland disturbance and insure compliance with the Federal Act and implementing regulations.

b. The department may require the creation, enhancement, or restoration of an area of freshwater wetlands of equal ecological value to those which will be lost, and shall determine whether the creation, enhancement, or restoration of freshwater wetlands is conducted onsite or offsite. The depart- ment shall accept and evaluate a proposal to create, enhance, or restore an area of freshwater wet- lands only after the department has evaluated the permit application for which the proposal is made, and shall evaluate the proposal to create, enhance, or restore an area of freshwater wetlands inde- pendently of the permit application. The department’s evaluation of a proposal to create, enhance, or restore an area of freshwater wetlands shall be conducted in consultation with the United States En- vironmental Protection Agency.

c. If the department determines that the creation, enhancement, or restoration of freshwater wetlands onsite is not feasible, the department, in consultation with the United States Environmental Protection Agency, may consider the option of permitting: the creation of freshwater wetlands or the enhancement or restoration of degraded freshwater wetlands offsite on private property with the restriction on these freshwater wetlands of any future development; the protection of transition areas or upland areas offsite, on private property, that are deemed by the department to be valuable for the protection of a freshwater wetlands ecosystem, with the restriction on these areas of any future development; or the making of a contribution to the Wetlands Mitigation Bank. The contribution shall be equivalent to the lesser of the following costs: (1) purchasing, and enhancing or restoring, existing degraded freshwater wetlands, resulting in preservation of freshwater wetlands of equal ecological value to those which are being lost; or (2) purchase of property and the cost of creation of freshwater wetlands of equal ecological value to those which are being lost. The applicant may also donate land as part of the contribution if the Wetlands Mitigation Council determines that the donated land has potential to be a valuable component of the freshwater wetlands ecosystem. The department shall permit the donation of land as a part of the contribution to the Wetlands Mitigation Bank only after determining that all alternatives to the donation are not practicable or feasible.

DEP’s website explains this:

The Wetlands Mitigation Council (Council) serves as an oversight committee for monetary contributions or donations of land to satisfy mitigation requirements. No monetary contribution or land donation can be accepted to satisfy a mitigation requirement unless it is first approved by the Council.

The Council is established by statute under the Freshwater Wetlands Protection Act and is comprised of seven members …

Proposed Flood Credit Trading Scheme Lacks Any Legislative Authorization

The Flood Hazard Act, and the other statutes pursuant to which the proposed rule is proposed, say nothing about any DEP powers to create a mandatory riparian mitigation program, create mitigation credits or a mitigation bank, or a mitigation trading scheme. Read it yourself.

The only “bank” the law mentions is a stream bank!

DEP has made the whole thing up out of whole cloth, a huge statewide expansion of regulatory power based on the Wetlands Mitigation scheme that was authorized by Legislation.

The Legislature must veto the DEP’s proposed rule as inconsistent with legislative intent on this basis alone.

Fate of Proposal To Demolish Duke Farms Mansion To Be Decided Tomorrow Night

Mansion Hidden Better Than Norman Bates’ Mother

Mike Catania Should Be Ashamed

The Hillsborough Historic Preservation Commission will decide the fate of the Mansion at Duke Farms tomorrow (Thursday) night.

It seems that the Duke Foundation – which reportedly was left a $1.79 BILLION endowment to manage the Estate –  failed to maintain the Mansion for many years and now feels it should be demolished.

Duke Farms CEO Mike Catania says restoration is not “cost effective”: (Star Ledger story)

Catania has said the cost to rehabilitate and maintain the mansion is prohibitive. He said the foundation has explored adaptive usages to the structure but determined that none is cost-effective. He said the notion that holding wedding, special events and conferences in the mansion isn’t the “panacea” many believe.

Catania is a leader in NJ’s conservation community.

Full disclosure: I have been a strong critic of his work, particularly with the organizational model he formed tellingly named “Conservation Resources, Inc.”, which I think undermines and injects corporate values into what should be activism and public policy decisions.

But Catania is also a former regulator, where he once served as Deputy Commissioner at DEP.

In that capacity, Catania was frequently confronted with industry arguments that various DEP requirements to protect public health and the environment were not “cost effective”. Thankfully, for the most part, those arguments were in conflict with laws, regulations and policies and were rejected.

So it is deeply hypocritical for Catania now to base his argument on cost effectiveness grounds. What about the public interest?

The public interest philanthropic mask comes off when private wealth is involved – those decisions will be made solely on private grounds, eh Mike?

Aside from the fact that he manages a $1.79 billion endowment, under that standard, Duke Farms itself would be paved over for development – it’s not a cost effective land use.

When I first read about this story, I traveled to Duke Farms so I could take a look at and photograph this mansion.

I could not find it identified on any the maps Duke provides to guide visitors to all the spectacular places on the Estate grounds.

I asked a maintenance supervisor where it was and he immediately became extremely defensive and evasive. He said it was not open to the public and that I couldn’t get within a half mile of it, but I could view it from a trail (which he refused to identify).

So, I set out to find it – and as I finally did, I got this creepy feeling as it emerged within view:

The place was as well hidden – and preserved – as Norman Bates’ mother!

Why are they hiding it?

And none of this is cost effective either: