WolfeNotes.com

Public Duped (Again) About Combined Sewer Overflow (CSO) Permits

DEP’s False Narrative Of “First Ever” Uncritically Parroted And Transcribed

“In an effort to prevent raw sewage from spilling into New Jersey’s waterways, the state is beginning to require sewer plants to plan for 500-year storms and to prepare for extended outages of up to 14 days.” (NJ Spotlight, 9/17/14)

DEP is actually going backwards on climate adaptation and protection of water resources.

As just one example, see the above quote, which illustrates that DEP was incorporating the 500 year climate driven storm and flood in permits almost a decade ago. Yet current DEP proposed inland flood rules and draft CSO permits do not mandate the 500 year storm.

Do NJ Spotlight reporters and editors read their own reporting?

Ignoring all that, NJ Spotlight today published another puff piece by Jon Hurdle on the public hearing for DEP’s recently proposed combined sewer overflow permits, see:

• Public welcomes plan to stop mixing sewage with stormwater

Of course the public welcomes that, but the public doesn’t know how to read draft DEP permits and regulations, so they are unaware that they have been duped, again.

They have not only been duped, they are parroting DEP talking points:

“It was so gross. I am so grateful that we have been granted the first opportunity … to fix our destitute sewer systems.”

This nonsense about “the first” is a false narrative manufactured by DEP to create the false appearance of leadership and it comes directly from DEP’s December 13, 2022 press release. I exposed that sham in this post:

• The Murphy DEP Just Inadvertently Admitted That DEP Urban CSO Permits Have No Teeth

And once again, NJ Future actively misleads the public (or they haven’t read or understood the draft permits, especially in light of DEP’s recent “variance” loophole proposal and the fatal flaws in DEP’s inland flood rule proposal: (NJ Spotlight)

“We are happy to see that the facility floodproofing plan is based on sea-level rise data,” said Patricia Dunkak of the nonprofit New Jersey Future, in one of a series of five-minute speeches.

But she asked: “How will DEP incorporate NJ PACT rules into this permit and future permits? Will future hydrologic modeling be updated based on precipitation data and modeling?”

By law, everything DEP does must be “based on data”. The critical issue is WHAT DATA?  And to meet WHAT STANDARD?

DEP did not use current rainfall data (or “design storm” statistics) or climate science based projected sea level rise, rainfall, or flooding data – not even the 500 year storm, which already has been exceeded multiple times.

How could Ms. Dunkak not know the answer to her question? Did she read the draft permit? Did she read the DEP’s proposed inland flood rules?

And once again, environmental groups – and NRDC does read permits and regulations, or at least they used to – pull punches and provide cover:

For low-income communities served by utilities that are facing the major costs of upgrading their infrastructure, the Environmental Protection Agency provides affordability guidelines that propose more time for those utilities to meet permit requirements. But it is unclear for now whether New Jersey will follow the federal guidelines, argued Larry Levine, Director of Urban Water Infrastructure at the Natural Resources Defense Council.

Note the mention of the US EPA and not NJ DEP – this is done for a dishonest reason.

It masks DEP’s recently proposed “variance” loophole. NRDC knows this and so does Jon Hurdle.

It is correct that the EPA Clean Water Act rules provide a “variance”, but this permit is issued by the NJDEP under State water pollution control rules, which historically have been far more stringent than federal minimums.

The Murphy DEP just weakened that historic policy in their “variance” loophole – this is the same as Christie Whitman’s “federal consistency” rollback policy initially adopted in Executive Order #27.

That Order not only sought to roll back more stringent NJ State environmental regulations to federal minimums, it also for the first time mandated “cost-benefit analysis” in rulemaking.

The DEP “variance” loophole implements both Whitman rollback policies: federal consistency and cost based considerations. The CSO permits combine and expose those rollback policies.

Here is how NRDC misleads the public about that:

“As these draft permits start to come out, we are going to see how the state is responding — whether they are going to propose permits that give these cities as long as they want, or whether the state says you can’t have 20 or 30 years,” Levine said. “You have got to do this faster, and we are putting the onus on you to figure that out. “

The DEP will have to balance its responsibility for ensuring sewage-free streets with an assessment of the ability of a community to pay within a certain time, Levine said.

What absolute bullshit.

Did Mr. Levine read the draft permit and the DEP’s proposed “variance” rule? Why is he asking questions instead of making fact based criticisms?

And I won’t even bother with the spin about environmental justice.

I sent reporter Jon Hurdle this note to expose this misleading reporting:

Jon – 4 points:

1. What’s going on here? Did you read prior NJ Spotlight stories, include one you recently wrote?

If you OPPOSE DEP, you get 2 minutes to comment:

“You can’t have any grandfathering, you can’t have any compromises with the fossil-fuel and transportation industries,” Riss said, in one of a series of two-minute speeches. “

https://www.njspotlightnews.org/2023/01/inland-flood-protection-rule-dep-njbia-tropical-storm-ida-richard-onderko-hurricane-floyd/

If you SUPPORT DEP, you get 5 minutes to comment:

“We are happy to see that the facility floodproofing plan is based on sea-level rise data,” said Patricia Dunkak of the nonprofit New Jersey Future, in one of a series of five-minute speeches.

https://www.njspotlightnews.org/2023/01/combined-sewer-overflow-cso-north-bergen-township-hudson-county-woodcliff-sewer-treatment-plant-north-bergen-municipal-utility-authority-nbmua-department-of-environmental-protection-natural-resource/

2. Ask NRDC for comments on DEP’s “variance” proposal and how it would apply to these CSO permits (and the DRBC water quality standards upgrade).

3. Ask NJ Future about the 500 year design storm – Tom Johnson wrote about that:

“In an effort to prevent raw sewage from spilling into New Jersey’s waterways, the state is beginning to require sewer plants to plan for 500-year storms and to prepare for extended outages of up to 14 days.”

https://www.njspotlightnews.org/2014/09/14-09-16-state-wants-sewer-plants-to-plan-for-500-year-storms-extended-outages/

The inland flood rules have the same fatal flaw which will result in under-designed and obsolete infrastructure systems.

The US army Corps of Engineers just admitted that failure and the waste of $14 billion in New Orleans.

4. There was no “first” here. As I wrote just yesterday, that’s a false narrative:

http://www.wolfenotes.com/2023/01/nj-climate-activists-have-zero-credibility-and-no-spine/

“DEP was again touting their program as “the first ever” (remember that CSO press release?), and trying to manufacture a false narrative of leadership and policy innovation.

But what DEP actually did here was to recycle and rebrand a 15 year old law and take credit for it!

There was no “first ever” and policy leadership in DEP’s press release/event in Trenton last week (and it was not a “ceremony”, the ridiculous term used by Jon Hurdle).

DEP merely repackaged and rebranded a carbon sequestration program created way back in 2007, under the Global Warming Solutions Fund Act, see P.L 2007, c.340:

“(4) Ten percent shall be allocated to the department to support programs that enhance the stewardship and restoration of the State’s forests and tidal marshes that provide important opportunities to sequester or reduce greenhouse gases.”

I’ve documented all this multiple times recently.

Do better.

Groups Praise Gov. Murphy’s Collapse On Climate And Energy Master Plan

Murphy DEP Recycles And Rebrands 15 Year Old Climate Law

Today, NJ Spotlight reports that Gov. Murphy is running away from his climate commitments and the BPU Energy Master Plan, see:

• Murphy postpones public hearings on state’s new Energy Master Plan

I assume Tom Johnson is pleased by all that, after his drumbeat of biased and intellectually dishonest coverage that misleadingly emphasized the costs of renewable energy and failed to mention the benefits and costs of  the climate emergency or the profits of corporate energy giants.

As I wrote the other day, the Gov.’s latest move represents “Another Case Of Betrayal and Warped Wall Street Priorities’.

It is very obvious from NJ Spotlight’s story that the Gov.’s move is a major political and policy retreat after a long series of humiliating concessions, perhaps recently starting last fall with the fiasco over abandoning the DEP “emergency” flood rules in response to criticism by the business community, followed by abandonment of the DEP’s proposed boiler electrification rule, and adoption of a lame CO2 power plant emission rule.

But the climate sellout die was cast long before that, as we have written numerous times by exposing the conflict between the Gov.’s rhetoric and the policy reality of his actions (and explaining that a Gov.’s Executive Orders have no teeth – they require DEP regulations or BPU Orders to be implemented).

Murphy always was a climate fraud. But that fact was obscured by his well funded sycophantic cheerleaders and a lame press corps.

But despite the Gov.’s obvious and damaging defeat, NJ’s climate “activist” (AKA sycophantic cheerleader) Doug O’Malley from Environment NJ absurdly and shamefully claimed it was a “good thing”:

If delaying the plan allows New Jersey to get more funds to fight climate change, then that is a good thing, according to Doug O’Malley, director of Environment New Jersey.

“We haven’t met the goals of the first EMP so there isn’t a need to rush into the second,” he said. “The metric for success should be the climate pollutants we reduce and moving forward.”

Mr. O’Malley’s “metric for success” is a total failure, because DEP has done virtually nothing to reduce greenhouse gas emissions. The one rule they adopted would – best case – reduce the growth of emissions of a portion of the power sector, and total emissions by less than 3% by 2035. That is pathetic.

So, this “good news” from O’Malley completely shatters whatever was left of his credibility.

But, like I said, Gov. Murphy’s climate record was obscured not only by cowardly cheerleaders like O’Malley, but by a lame press corps.

Where, right on cue, is where NJ Spotlight reporter Jon Hurdle comes in today to bring us more “good news” on the Murphy DEP climate front!:

• NJ invests in nature to fight the effects of climate change

Hurdle got totally spun by that corporate snake oil salesman, DEP Commissioner LaTourette who, to mix metaphors, tried to make a silk purse out of a sow’s ear.

As I noted last week on the GHG emission “metrics” of this DEP’s patronage program parading as a “natural” carbon sequestration program:

DEP claims that the grants will sequester “32,710 metric tons of carbon dioxide equivalent (MTCO₂e) by 2050.” (that’s about $733 per ton sequestered while the RGGI carbon price is about $13 per ton emitted. That’s a valid point, because the source of funds for today’s DEP grants  are proceeds from the sale of RGGI allowances. It would be far more cost effective and equitable to simply ratchet down on the RGGI cap to make polluters pay, or to impose regulatory mandates on carbon emissions, or to invest in energy conservation in low income homes or simply stop logging NJ forests.)

But instead of cost considerations, let’s put that carbon sequestration data in climate context: 32,710 metric tons, over 28 years, is just 1,168 tons per year.

NJ emits about 100 million tons of greenhouse gases annually.

So, 28 years of sequestration from these otherwise worthy projects are just 0.001% of ANNUAL emissions.

I often criticize media for missing the story or ignoring crucial facts that conflict with their manufactured narrative. But I too just did what I criticize. I was so eager to expose the DEP patronage fraud, that I missed an equally serious scam that DEP was pulling.

DEP was again touting their program as “the first ever” (remember that CSO press release?), and trying to manufacture a false narrative of leadership and policy innovation.

But what DEP actually did here was to recycle and rebrand a 15 year old law and take credit for it!

There was no “first ever” and policy leadership in DEP’s press release/event in Trenton last week (and it was not a “ceremony”, the ridiculous term used by Jon Hurdle).

DEP merely repackaged and rebranded a carbon sequestration program created way back in 2007, under the Global Warming Solutions Fund Act, see P.L 2007, c.340:

“(4) Ten percent shall be allocated to the department to support programs that enhance the stewardship and restoration of the State’s forests and tidal marshes that provide important opportunities to sequester or reduce greenhouse gases.

If anything, DEP should get hammered for taking 15 years to implement the sequestration program and for promoting logging in the State Forest Action Plan – the most important plan you never heard of or read about in NJ Spotlight – and logging projects in the Highlands and Pinelands forests and for planning to weaken Green Acres regulations to allow logging on preserved public lands.

And competing with Doug O’Malley for record breaking credibility destruction is former DEP Assistant Commissioner Jay Watson, who now leads NJ Conservation Foundation (NJCF):

In Trenton, the city government will work with the New Jersey Conservation Foundation to plant 1,000 trees in neighborhoods that have few or no trees. The project, called Throwin’ Shade – Greening the Capital City, won a grant of almost $1.4 million, and aims to trap carbon, reduce the urban heat-island effect and reduce stormwater runoff.

“We believe this project can be transformative in our capital city where residents are experiencing disproportionate impacts of climate change,” said Jay Watson, the foundation’s co-executive director. “Urban neighborhoods are dealing with the heat-island effect that causes higher ambient temperatures than in suburban and rural areas.” 

Jay Watson’s “transformative” quote makes him look even more ridiculous than Doug O’Malley’s quip that abandoning the EMP was a “good thing”.

Do you really think 1,000 trees (4 or 6 inch caliper) are going to “transform” Trenton?

Have any measurable effect on urban heat island temperatures?

Really?

DEP is going to log 2.4 MILLION trees in there Pinelands and Jon Hurdle failed to cover that. DEP continues to log more trees in Highlands forests as well.

Ah, but those are inconvenient facts that spineless “green” cheerleaders and press lapdogs like Hurdle ignore.

Gov. Murphy’s Green Cheerleaders Predictably Spin His Environmental Record

The “Chat Box” Is A Full Of Crap Box

“The age of Truth shall soon appear, Aquarius arise.

A man’s a man who looks a man right between the eyes.” ~~~ Graham Nash (and RIP David Crosby)

The last time David Cruz’ “Chat Box” at NJ Spotlight TeeVee interviewed 2 guests on the topic of Gov. Murphy’s environmental record, it was a real hoot, with retired Sierra Club veteran Jeff Tittel eviscerating the Gov. and embarrassing an obviously clueless poser, Marcus Sibley, see:

• Environmental Justice Leader Says Gov. Murphy “Doing A Really Good Job” On Climate And The Environment

I guess Cruz got the memo from the Gov.’s Office and PBS owners/managers to tone it down, because his latest show on the Gov.’s environmental record featured a love-fest between two Murphy cheerleaders, Anjuli Ramos, Sierra Club and Doug O’Malley, Environment NJ (critics need not apply).

Watch the show and see for yourself: “Offshore Wind, Whales, And Climate Change” (time 13:15 – 30:15)

Weeks and days after Murphy’s State of the State address (i.e. I am not criticizing his entire 5 year record here, there’s more to come on that), which gave short shrift to climate and environmental issues, and Murphy’s proposed corporate tax cut that would slash $36 million in environmental funding (mostly for Green Acres open space) and Murphy’s U-turn betrayal in support of the controversial bear slaughter and abandonment of DEP’s proposed boiler rules and DEP adoption of a very weak power plant CO2 rule and DEP proposal of a fatally flawed inland flooding rule and a DEP’s settlement and controversial corporate giveaway to chemical giant BASF in Toms River and DEP’s failure to adopt EJ rules and DEP’s Clean Air plan on fine particulates that is obsolete in light of prosed more stringent EPA national standards and DEP’s controversial Pinelands and Highlands logging projects and DEP’s planned proposed rollbacks of Green Acres rules to promote insane development and DEP’s pending adoption of a major “variance”  loophole in clean water standards and the recent gaps and loopholes in chemical safety regulations (RTK, TCPA) exposed by the Passaic City chemical fire and the Bergen Record’s series and DEP rubber stamp regulatory approvals of millions of square feet of warehouses and the toothless State Plan and the upcoming Forestry Task Force recommendations  – oh no, we get no mention of any of that.

The show began with the media topic of the day, the death of whales. Both guests could not find the backbone to state the obvious: the opportunistic political exploitation of whale deaths to attack offshore wind is disgraceful, by both State Senator Polistina and Clean Ocean Action.

The conversation then moved on to the Governor’s environmental record.

Both then gave unqualified support for off shore wind, without noting the fact that the BPU Energy Master Plan integrates wind with continued reliance on fossil natural gas power and that there are no enforceable regulations or contracts that require wind to displace fossil power sources. With a projected more than doubling of demand for electric power, it is likely that wind will serve demand growth, not displace fossil.

After a Cruz intro that specifically asked for the Gov’s “strengths and weaknesses” and a clip from the Gov. that emphasized his “pragmatism”, Sierra did not mention any weaknesses and parroted the Gov.’s “pragmatism” and gave him a pass by mentioning that he has 3 more years to act. Her only demand was the California clean car standards.

O’Malley then falsely claimed that Murphy DEP was playing “catch up” after 8 years of the disastrous Christie DEP policies and regulatory rollbacks. That is factually false.

The Murphy DEP has not even tried to repeal, restore, and strengthen the Christie DEP regulatory rollbacks.

Very few people know this, but the Murphy DEP has re-adopted without change 42 Christie DEP regulations (and denied several important petitions for rulemaking on: 1) climate, 2) wildfire prevention, 3) Green Acres, and 4) water quality).

Despite the green rhetoric, in fact, there has been enormous policy continuity. The Gov. did repeal Christie’s Ex. Order #2 on regulatory policy, but Murphy;s replacement EO is not much better and DEP has done nothing to reduce the undue influence by regulated industry on DEP rulemaking or stakeholder processes or tilt the balance back in favor of protection of public health and the environment over economic considerations.

To his benefit, O’Malley did contrast the Gov. Executive Order with DEP’s failure to follow through and implement them via regulations (only the adaptation regulations, under PACT) and pending fossil infrastructure projects. Doug mentioned failure to deliver on some campaign commitments and diversion of clean energy funds. But Doug failed to mention the DEP’s only rule on emissions reductions, the lame CO2 power plant rule.

Despite discussion of the “don’t take my gas stove” scheme, both failed to criticize the DEP’s recent cave to the fuel merchants association and abandonment of a proposed electric boiler replacement regulations, a minor first step in electrification of buildings.

Neither mentioned DEP Clean Air Act SIP amendments for failure to meet the health based ground level ozone and fine particulate standards (or EPA’s recent proposal of more stringent standard). No mention of air toxics and DEP’s continued issuance of air permits that allow emissions of hazardous air pollutants with no consideration of climate or EJ issues.

I sent the group the following email, to ask them all to do better and hold DEP and the Gov. accountable to their records:

Murphy DEP has not rescinded and restored Christie DEP rollbacks, and they haven’t even tried, so Doug is full of crap. There has been a LOT of policy continuity in almost all DEP programs: air, water, toxics, solid waste, hazardous waste, forestry management (logging), land use, Barnegat Bay, et al. Even some Christie DEP political appointment staff holdovers in Commissioners Office, Press office, NJ Env. Infrastructure Trust, et al. Budget?? Enforcement??? Highlands – nothing but a pro-economic development emphasis. Pinelands – logging plan, incomplete followthrough on appointments, no national search for a qualified Ex. Director.

Gov. Murphy EO did rescind Christie EO 2, but the replacement EO is almost as bad and DEP has not changed to rulemaking or stakeholder processes to curb undue industry influence.

DEP has proposed several regulatory rollbacks, including a “variance” loophole in Clean Water Act standards and permit requirements.

DEP’s CO2 emissions rule for large power plants recently adopted was pathetic.

The RGGI cap is still way too high and carbon allowance auction price way too low.

Flood rules fatally flawed because they continue to rely on 100 year storm event and dod not address paid use planning but instead try to engineer (build on stilts) out of the problem.

No change on CAFRA and coast or ocean policy.

I could go on

And the opportunistic political sham on the whale deaths is disgusting – failure to call that out id pure cowardice.

LaTourette In His Own Words:

How can you give a pass on all this (plus the $36 million cut to Green Acres money the Gov. just announced, a result from his corporate tax cuts)

1. “No immediate end to fossil-fuel use

Department of Environmental Protection Commissioner Shawn LaTourette said he has told advocates pushing to shut down all fossil fuel projects that that is not going to happen anytime soon.

“We need carbon-based fuels to power our economy,’’ LaTourette said. “It is why we don’t see the DEP responding to calls for a fossil fuel moratorium.’’ ~~~ NJ Spotlight

NJ to push for public backing on climate action with new regulations

2. “We’re not at a point, nor do we think it’s our role, to tell people: ‘Don’t build here, you shouldn’t build there, you can’t do that,’” LaTourette said. …

He said the DEP wants to avoid being the “big, bad government” that imposes heavy-handed regulations. officials have continued to gather input via a series of virtual meetings with stakeholders and aim to formally propose new regulations “early next year,” perhaps in the first quarter, LaTourette said. (NJ Spotlight)

https://www.njspotlightnews.org/2020/10/updating-nj-climate-change-regulations-developers-builders-fear-officials-advocates-say-necessary/

3. BASF settlement was was bad as Christie DEP Exxon NRD sellout.

4. LaTourette’s NJ Spotlight TV remarks were outrageously callous in response to Linda Gillick’s childhood cancer cluster interview.

5. Abandoned the boiler rule proposal

6. No action on electrification of buildings

7. Nuke subsidies over $1 billion now.

8. LNG export, pipeline, compressor stations permits still pending

9. LaTourette was a corporate lawyer, not Erin Brockovich like Gov. press release claimed.

I’ve been documenting all this from day one – Do you want more?

Wolfe

Where Was The Murphy DEP? What Happened To DEP’s “Duty to Protect”?

Why No Public Enforcement Of Public Trust Doctrine?

Vindication of The Public’s “Inalienable and Vested” Access Rights Relies On Private Enforcement

[Updates – Clarifications – Below]

NJ Spotlight reports that a Bergen County Superior Court decision upheld the Public Trust doctrine in an important decision involving public access to the Hudson River waterfront, see:

• Condo owner can’t block Hudson waterfront trail

The case was praised as a victory on a “critical issue” and the first to test a recent piece of legislation:

Tim Dillingham, executive director of the New Jersey-based American Littoral Society, said the ruling is the first he is aware of to use a 2019 state law on public access to support its findings.

“It is really critical that property owners understand that their right of ownership does not include the right to exclude the public from accessing the waterfront via formerly submerged lands,” Dillingham said

In emphasis on the limitations of the rights of private property owners, Dillingham revealingly has framed the issue exactly backwards. And he does so in a way that masks a critical issue.

The Public Trust doctrine is an affirmative public right that must be enforced by public agencies, i.e. the DEP.

In this case, the realization of the Public Trust Doctrine is essentially limited to the kindness of strangers: i.e. it is only effectuated by enforcement by a private lawsuit by the Hudson River Waterfront Conservancy (a group who was acting as a lot more than what they describe their function to the Court as the “eyes and ears of DEP” (cite omitted). In this case, they were acting as DEP’s private enforcement arm.).

I’ve written to criticize that law Mr. Dillingham again praises as effectively narrowing the Public Trust doctrine, see:

• NJ Gov. Murphy’s Public Access Law Guts The Public Trust Doctrine

Just 2 days after DEP’s announcement of that $1 million grant [to ALS], Dillingham was quoted in Gov. Murphy’s press release praising the Gov. for signing the public access law:

“We thank Governor Murphy for signing this important legislation. It will strengthen the protection of the public’s rights to get to and enjoy NJ’s beaches and waterfronts,” said Tim Dillingham, Executive Director of the American Littoral Society. “It will provide new tools to deal with long standing public access problems. We look forward to working with the administration to getting this law implemented and getting New Jerseyans everywhere to the waters that they have a right to enjoy.”

So – especially after that big wet kiss “thank you” – where was the Murphy DEP in “getting the law implemented” and enforcing this “important legislation”?

I want to highlight important limitations in the Doctrine, as illustrated by this case.

Those key limitations are alluded to in a vague single sentence at the end of the NJ Spotlight article:

The Department of Environmental Protection, which enforces the public trust doctrine, declined to comment on the ruling. 

DEP did a lot more than decline to comment.

DEP failed to enforce the public trust doctrine and they failed to intervene in this case to seek its enforcement by a private party.

The Court’s decision makes that clear. The Court noted that DEP was granted authority to enforce the Public Trust doctrine by the law that Dillingham praises:

So, if DEP has that authority, why didn’t they enforce it?

What happened to DEP’s “duty to protect the public’s right of access”?

How could the public’s right of access to the waterfront – which the court found was “inalienable and vested “(decision @p.22) – not be enforced by the DEP?

The defendant’s brief explains why – an issue that is completely ignored by the Court’s decision, the Spotlight article and Mr. Dillingham – and that explanation exposes a huge weakness in the law and DEP enforcement powers and policy:

Let’s repeat that:

Defendant asserts that the Association is not seeking a DEP permit and, therefore, the statutes and regulations plaintiff set forth are not applicable.

That fact, i.e. the there was no DEP permit involved, exposes the fact that the Public Trust Doctrine is limited by the fact that DEP can not broadly assert it unless a permit review is pending.

Why should public access to a regional waterfront corridor depend on a private group to file a lawsuit (and one that DEP did not seek to join as a Plaintiff or even submit an Amicus brief in support of)?

The Hudson River Walkway is a State planned DEP riverfront corridor project that is incorporated in DEP’s Coastal Zone Management Rules:

The concept for the Hudson River Waterfront Walkway first appeared in “The Lower Hudson”, a study completed in 1966 by the Regional Plan Association. Twelve years after the publication of “The Lower Hudson”, Governor Brendan Byrne established the Hudson River Waterfront Study, Planning, and Development Commission. Their final report included a recommendation for a continuous public walkway extending along the Hudson River

In 1988, the Coastal Zone Management rules established specific criteria for development along the Hudson River Waterfront Area including the creation of the Hudson River Waterfront Walkway. When complete, this Walkway will be an urban waterfront corridor connecting the George Washington Bridge in Fort Lee with the Bayonne Bridge in Bayonne. As the crow flies it will extend about 18.4 miles, but the total length will exceed 40 miles. Nearly complete, the Walkway offers residents and visitors spectacular views of the Statue of Liberty, the New York City skyline, Ellis Island, and the Hudson River.

Yet DEP failed to and apparently legally could not enforce public access because no individual permit was involved.

So, that means that the realization of public access rights is narrowly limited to single site specific lawsuits filed by private individuals or organizations, as opposed to broad planning and enforcement by the DEP in the public interest.

That is a LOSS for the Public Trust doctrine, not a victory.

[End Note: We wrote just yesterday to criticize DEP for “abandoning regulatory enforcement” and Mr. Dillingham and ALS, but unfortunately we left out his cheerleader role in the public access issue, which is exposed today.

It is amazing that NJ Spotlight could let Dillingham and DEP off the hook in today’s story, isn’t it? After they previously quoted Dillingham praising the law and looking forward to working with DEP to implement it and then DEP completely bails, refuses to enforce that law, and then has “no comment” on it?.

So, let me repeat that criticism today:

• American Littoral Society has been virtually silenced on issues they have taken a leadership role on:  they’ve done nothing to challenge the Murphy DEP’s failure to enforce the Clean Water Act to prevent the ecological collapse of and restore Barnegat Bay (this is doubly shameful, because Tim Dillingham, head of ALS, hails from the shores of Chesapeake Bay, where he knows that the US EPA is using a TMDL cleanup plan to restore the Bay); DEP’s failure to enact long delayed numeric water quality standards for nutrients; DEP’s proposal of a gaping “variance” loophole in clean water act regulations; failure to strengthen CAFRA and limit coastal sprawl development; and failure to reform NJ’s Blue Acres and Coastal Management programs to consider a policy of “strategic retreat” from climate driven coastal flooding, sea level rise and storm surge. ALS is AWOL and crickets on all that and more, all issues they’ve led on in the past. ALS has received millions from prior DEP grants.

[Update – Clarification – I got some pushback on this from people I respect, so feel the need to clarif

I’m no lawyer, but the following signs are all in the same direction (please read the case and note distinction between the scope of the Public Trust Doctrine, i.e. what are the bundle of public rights, versus WHO can enforce those rights.

I am NOT arguing that a private individual can not enforce the Public Trust Doctrine, I am just describing this case and noting that this is a real problem, it was raised by the defendants, it was not resolved by this decision, it is likely to be appealed, and the DEP’s failure to enforce is troubling. Consider the following facts:

1) I excerpted the DEP permit claim from the Condo Assc.’s legal brief;

2) The Court specifically mentioned that issue but did not rule on it

3) the DEP, for years, never intervened to enforce their own CZMA regulations or the Public Trust Doctrine as common law, instead allowing a single parcel to block completion of the walkway.

4) the DEP did not join the lawsuit as a plaintiff.

5) the DEP did not file an Amicus brief to defend the Doctrine, their regulations, the 2019 law Gov. Murphy signed, or the private common law rights of the plaintiffs.

6) the DEP had no comment to the media on the decision.

All that tells me that there are real problems regarding enforcement and that DEP may be limited to enforcing the doctrine only via the permit process.

On top of that, the 2019 law the Court relied on, whether or not a private plaintiff or DEP brings the lawsuit, explicitly narrowed the scope of DEP’s permit regulations in terms of the kinds of public access that DEP could enforce in the DEP permit program and the kinds of mitigation DEP could extract as permit conditions. That’s the law Tim Dillingham negotiated and praised.

And that’s a big problem too.

[Update #2 – 2/7/23 – I need to correct and clarify the criticism of DEP. I asked a local expert about this and he just advised me of the following, which explains why there was no DEP permit or enforcement intervention at Admiral’s Walk:

The Hudson River Waterfront Conservancy has been working closely with the NJDEP on this case. The NJDEP has been able to get another developer to cover the cost of rebuilding the walkway at the Admiral’s Walk site but the condo assoc. decided to challenge this prior agreement. Admiral’s Walk was built prior the state’s Coastal Zone Management Regs going into effect which explains why this gap site has remained for all this time.

The New CCC: Collaboration, Cop-Optation, Corruption

DEP Virtually Abandons Regulatory Enforcement –  Entire Focus Now About Patronage

Gov. Murphy’s Corporate Tax Cuts Would Slash $36 million, More Than Today’s Grants

Phil Murphy spread a lot of money around New Jersey to buy the kind of political support required to become Gov. He spent $16.3 million of his own money in 2017.

Echoing that classic old commercial for EF Hutton, a Wall Street investment firm: He earned the Governor’s seat the old fashioned way: he bought it.

Now, his DEP is doing exactly the same thing with the Faux Green community:

• MURPHY ADMINISTRATION AWARDS $24.3 MILLION THROUGH ITS NATURAL CLIMATE SOLUTIONS GRANT PROGRAM

I’ll make just one point about the merits of these grants.

DEP claims that the grants will sequester “32,710 metric tons of carbon dioxide equivalent (MTCO₂e) by 2050.” (that’s about $733 per ton sequestered while the RGGI carbon price is about $13 per ton emitted. That’s a valid point, because the source of funds for today’s DEP grants  are proceeds from the sale of RGGI allowances. It would be far more cost effective and equitable to simply ratchet down on the RGGI cap to make polluters pay, or to impose regulatory mandates on carbon emissions, or to invest in energy conservation in low income homes or simply stop logging NJ forests.)

But instead of cost considerations, let’s put that carbon sequestration data in climate context: 32,710 metric tons, over 28 years, is just 1,168 tons per year.

NJ emits about 100 million tons of greenhouse gases annually.

So, 28 years of sequestration from these otherwise worthy projects are just 0.001% of ANNUAL emissions.

That’s a JOKE and a CORRUPT PATRONAGE PROGRAM, not a climate program.

DEP supported logging projects in the Pinelands and the Highlands result in new emissions that are FAR more carbon than that and limit future carbon sequestration far more than that.

The same goes for hundreds of air pollution permits, pipeline approvals, and land use development approvals that DEP rubber stamps every year with absolutely no review of the climate impacts or carbon emissions.

And the corruption here is blatantly obvious, as only a handful of recent examples demonstrates by groups that were funded by DEP today (and would never bite/criticize the hand that feeds/grants them):

• Pinelands Preservation Alliance recently aggressively publicly supported a huge 1,400 acre DEP logging plan in the Pinelands. Weeks later, they received a $581,500 DEP grant.

• NJ Conservation Foundation also supported that Pinelands logging plan. NJCF also formed its own astro-turf climate organization, called Rethink NJ. That group has failed to criticize the Gov.’s multiple climate failures and refused to support the work of or join the State’s largest 120 member climate coalition (Empower NJ) who is calling on the Gov. to stop approving fossil infrastructure (Moratorium Mondays) and to act meet the goals of his own Executive Orders on climate. (or to take what I’ve recommended as real actions to put teeth in NJ’s climate laws). Instead, Rethink NJ focuses on the Federal Energy Regulatory Commission (FERC) and fails to pressure DEP to use its regulatory authority to kill pipelines and other fossil infrastructure (power plants, compressor stations). Jay Watson of NJCF is a former DEP Assistant Commissioner, so he has revolving door appearance issues as well.

• American Littoral Society has been virtually silenced on issues they have taken a leadership role on:  they’ve done nothing to challenge the Murphy DEP’s failure to enforce (remember that TMDL bill?) the Clean Water Act to prevent the ecological collapse of and restore Barnegat Bay (this is doubly shameful, because Tim Dillingham, head of ALS, hails from the shores of Chesapeake Bay, where he knows that the US EPA is using a TMDL cleanup plan to restore the Bay); DEP’s failure to enact long delayed numeric water quality standards for nutrients;

“The science is available now” to fix Barnegat Bay by setting firm pollution limits, said Tim Dillingham, executive director of the American Littoral Society, on Sandy Hook. The Christie administration “has to make a decision to use it.” (Asbury Park Press (8/7/14)

As we recently wrote, Barnegat Bay has gone from crisis to crickets – and Dillingham is one of many crickets.

Dillingham also ignores DEP’s proposal of a gaping “variance” loophole in Clean Water Act standards regulations; failure to strengthen CAFRA and limit coastal sprawl development; and failure to reform NJ’s Blue Acres and Coastal Management programs to consider a policy of “strategic retreat” from climate driven coastal flooding, sea level rise and storm surge. ALS is AWOL and crickets on all that and more, all issues they’ve led on in the past. ALS has received millions from prior DEP grants.

• NJ Audubon Society, a founder of the Keep It Green coalition that was created to fund open space purchases said nothing to criticize Gov. Murphy’s proposed corporate tax cuts, which would slash $36 million from open space funding, perhaps NJA’s highest priority issue. They also benefit indirectly from today’s grants as founder of the Partnership for Delaware River and also have revolving door appearance issues because Eileen Murphy, NJA head lobbyist is a retired career former DEP manager.

I could cite many more examples.

And all these groups SUPPORT DEP LOGGING, which is the OPPOSITE OF CARBON SEQUESTRATION.

It’s disgusting.