More Mitigation Means More Development, More Loss Of Environmentally Sensitive Lands, More Flooding, Less Habitat, And More Water Pollution
DEP Proposal Makes A Mockery Of Commitment To Address Increasing Threats Due To Climate Driven Sea Level Rise, Storm Surge, Flooding, And Extreme Weather
Prior DEP Scientific Study Found That Mitigation Does Not Work
Today the Murphy DEP proposed new regulations to expand the use of “mitigation” options in DEP land use programs.
“Mitigation” allows developers to destroy environmentally sensitive regulated lands in exchange for “mitigation” of other lands to allegedly replace the ecological and other functions of the destroyed lands.
Here’s how DEP explains what “mitigation” is (p. 3, emphasis mine):
Mitigation is a tool used to replace environmental resources when the determination is made that a proposed activity meets the standards and conditions to be granted a permit that will result in the loss of coastal or freshwater wetlands, intertidal/subtidal shallows, or riparian zones.
Did you get that? Were you able to penetrate the DEP bureaucratic spin?
The key words are that instead of simply denying a permit for new development, the DEP will issue a permit that “will result in the loss” of critical natural resources.
The “mitigation” is supposed to offset those losses.
Allowable DEP “mitigation” also includes complex credit generation and mitigation banking and trading schemes that are mostly scams. Think of them as Trump’s ‘ART OF THE DEAL” (financial, engineered, and legalistic scams!).
The DEP proposal would expand mitigation as follows:
The proposal encompasses the three land use rules as follows:
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Within the CZM rules, this proposal would allow applicants who need to mitigate for intertidal/subtidal shallows (ISS) impacts to use a mitigation bank.
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The proposal adds the ability to preserve wetlands as a form of mitigation to both the CZM and FWPA rules.
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The FWPA rules are being amended to change the mitigation hierarchy for a “larger” disturbance and make it the same as the hierarchy for a “smaller” disturbance.
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The proposal would repeal the option to make a “single family contribution” to the Wetlands Mitigation Council for impacts resulting from general permits.
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In the Flood Hazard Area rules, the proposal would allow applicants to use the full range of mitigation options, including a mitigation bank, if mitigation along the same water or upstream is not feasible for major developments proposed along C-1 waterways.
Incredibly, the DEP is proposing to allow expanded mitigation (i.e. use of a mitigation bank) for loss of “intertidal/subtidal shallows”. These lands and adjacent lands are likely to be inundated by sea level rise.
The DEP’s proposal to allow use of mitigation bank for ISS mitigation is revealing.
Although the DEP has been unable for over 20 years to adopt a science based methodology to calculate the value of natural resources damaged by pollution to support DEP’s pennies on the dollar NRD claims, the DEP has adopted a methodology to economically value land loss to promote mitigation deals (and allow new development to destroy environmentally sensitive lands).
DEP adopted a mitigation economic formula to promote new development. The DEP’s land valuation formula has nothing to do with ecological value, but only real estate market value (DEP proposal, p.5):
To address this issue when first identified in 2019, until such time that the rules could be amended, the Department requested, and the Council approved, a simplified process to determine the “amount of the value of the land filled and the cost of creation of intertidal and subtidal shallows of equal ecological value to those which are being lost.” The Division has been using the tax-assessed value of the land to calculate the “value of the land filled” by using a simple formula:
The DEP now proposes to revise this sham, but the proposed changes still rely on real estate market valuation. DEP simply shifts a site specific scheme to the mitigation bank. DEP does this to lower the cost to developers and streamline and accelerate the mitigation scheme, not to capture ecological land values:
Based on these factors, using a mitigation bank more quickly replaces lost resources, and may also be more cost-effective than the current rules for those mitigating for ISS. Therefore, the Department is proposing to allow the use of a mitigation bank for impacts to ISS.
So much for regulatory reform and addressing the climate emergency.
The proposal also will allow more new development and the destruction of critically important and environmentally sensitive lands, including vegetated buffers along high quality “Category One” (C1) streams (see #5 above).
This can only lead to more flooding, loss of habitat, and water pollution.
We remember when DEP relied on science and used regulations to protect natural resources from destruction by development. (We worked there then!)
Very few people recall or are aware that back in 2002, the McGreevey DEP issued a press release that released a DEP study that found that wetlands mitigation does not work:
TRENTON 04/11 — New Jersey Department of Environmental Protection (DEP) Commissioner Bradley M. Campbell today released the findings of a study designed to assess the success of the state’s efforts to mitigate the loss of wetlands by creating new freshwater wetlands. The report shows that the program has been much less than successful. In fact, results of the 90-site study indicate a 22 percent net loss of wetland acreage and that only 45 percent of the created wetland acreage required under the state’s program was achieved.
“New Jersey has long required that up to two acres of wetlands be created for every one acre lost,” said Commissioner Campbell. “However, setting goals for a net increase in wetlands is futile if, in the end, your results show an actual net loss. The most important lesson we must learn from these results is that mitigation is not a substitute for avoiding and minimizing wetlands fill wherever possible.”
Read the DEP study:
Over the 23 years since that DEP Report was issued, NJ has lost even more acres of critically important wetlands to failed mitigation projects and new development (we don’t know how many because DEP no longer issues those kinds of critical reports).
The Murphy DEP’s proposed huge expansion of the failed mitigation approach will only accelerate those wetlands losses and loss of other environmentally sensitive and flood prone lands, including new development of lands that likely will be inundated due to sea level rise.
The DEP’s proposal makes a mockery of their “commitment” to adapt to the climate emergency and make NJ more “resilient” (AKA DEP’s “REAL” rules).