Posts Tagged ‘coastal’

State, Regional and National focus attention on our Oceans.

Written by Mike Pisauro on June 22nd, 2009 in Clean Water, Federal, legislation, Ocean, Politics | No Comments »

June, as national ocean month, has been a fairly busy one. Two weeks ago the Governors of NY, NJ, DE, MD, and VA met in NY to create the Mid-Atlantic Regional Council on the Oceans. Governor Corzine has just appointed members to the NJ Coastal and Ocean Protection Council. President Obama also has created an inter-agency task force. These are all laudable steps on addressing the dire condition of the Oceans. They are long overdue steps.

In 2003 and 2004 the Pews Ocean Commission and the U.S. Commission on Ocean Policy issued their reports on the health of our oceans. Without going into great detail the cliff notes of these reports were that our oceans are in serious jeopardy and actions had to be taken to reverse course. It has been 5 to 6 years since those reports were issued and at least in NJ the course has not been reversed. There might be debate on whether the continued degradation of our oceans has been slowed, but it clearly has not been reversed. There is still a dead zone stretching along 100 miles of NJ’s coast. Fishing stocks are still declining. Pollution is still running off compromised watersheds further deteriorating the health of our ocean. At the same time there is a push to increase exploration for fossil fuels and to install new renewable energy off our coast.

In order to help NJ address the Pews and U.S. Ocean recommendations, the New Jersey Coastal Ocean Coalition issued a report called: Ocean Protection in New Jersey: A Blueprint for Success. After several years of lobbying, the COC successfully got passed and signed into law the Coastal Ocean Protection Council law. That law took effect on January 13, 2008. In part the law created a council to help the State look at the issues affecting the coast and how best to address the issues. It took over 18 months from the time Governor signed this legislation into law to when he made appointments to the council. It has been 18 months without the council working towards strategies on improving NJ’s regulation of the ocean and coastal environments. It has been six years since the Pews report called for coordinated approaches toward regulating this resource without any meaningful movement to correcting the problem.

When Governor Corzine, entered into the Mid-Atlantic Regional Council on the Oceans he said:
Any threat to these natural resources brings economic consequences that threaten jobs, local economies, and our economic well being. New Jersey is committed to working with our Mid-Atlantic partners to provide adequate safeguards and formulate a shared vision for the region’s future.

This is not a new sentiment, but one that the State asserted when the New Jersey’s Coastal Area Facility Review Act was passed in 1973. I hope that New Jersey and the surrounding states are seriously but addressing the multiple threats to our oceans.

We need a mechanism to coordinate policy with our neighboring states because as we all know the water along our coast does not stay within the jurisdiction of anyone state, but it moves. It is the plan that the Council will help the States examine the issues on the regional level and help the State address them in ways that are not counterproductive to each other.

Even more recently, the President created the Ocean Policy Task Force. One of the goals of the Task Force is to propose a national policy that will protect, maintain and restore the oceans, coastal and Great Lake ecosystems including the implementation of adaptive management; a way to coordinate interagency actions, and how to implement these proposals. The Task Force is also put together a recommendation for coastal and marine spatial planning. If I am reading this Memorandum right the goal for the Task Force is to take the recommendations of the U.S. Commission on Ocean Policy and to figure out how to implement it.

These are very important concepts that I hope are more than catchy phrases to government. If these are no more than words than there will not be an improvement. These words must the announcement of actual action. For NJ, they must implement the Coastal and Ocean Protection Council and allow the council to get to work. For the Mid-Atlantic Regional Council on the Oceans the States must look how many of their regulations both water and land based affect the oceans and how each State can compliment their neighbor’s work. Lastly, the Federal Task for can look at how to assist the States and Mid-Atlantic Regional Council on their missions as well as to provide a uniform framework across multiple agencies on how to cherish and protect this vital resource. We will see if actions do speak louder than words.


DEP cannot ignore the requirments of the law

Written by Mike Pisauro on March 28th, 2009 in Courts, land use, Ocean | No Comments »

Recently, the appellate division reminded DEP that it has to follow the law. In Dragon v. NJDEP, the NJ Appellate Division reversed the DEP’s authorization of development in the CAFRA zone without issuing a permit.

The case arose because a property owner wanted to demolish their existing home and build a new larger one next to the beach of Brigantine. The original proposed expansion would have expanded their home from 1944 to 3480 square feet and brought the house nine feet closer to the beach. The homeowner applied twice for a general permit which was denied because they did not meet the requirements of the general permit on either occasion. On both applications, one of the homeowner’s neighbors objected to the applications.

The homeowners appealed the denial and the matter was referred to DEP’s office of dispute resolution. During the dispute resolution process the DEP and the homeowners reached a compromise. This settlement was reduced to a written “Mediation & Settlement Agreement in lieu of a permit.” The neighbor objected to the settlement and challenged it. The DEP rejected the challenge and issued the homeowners a “Letter of Authorization” (LOA) allowing the reconstruction of the house, but even bigger than what the homeowners requested and without any set back from the bulkhead along the beach. This LOA specifically provided that it was instead of a coastal general permit under the Coastal Zone Management rules.

The objecting neighbors appealed the issuance of the LOA alleging that the Coastal Area Facility Act (CAFRA) and its implementing rules did not allow the DEP to settle a case by authorizing development without the applicant meeting the requirements of and receiving a permit. The DEP countered it had the authority “deviate from strict compliance with its own regulations in order to avoid ‘litigation risks’ and to prevent” a possible adverse legal ruling.

The Appellate division ruled that CAFRA did not give the DEP authority to waive the substantive requirements of the statute or it’s implementing regulations. (DEP could have the authority to wave procedural requirements.) Because CAFRA was designed to balance the completing interests of protecting, repairing and enhancing the environment with encouraging compatible land use it was important that any development be either by permit or within one of CAFRA’s exemptions. DEP could not in the spirit of settlement avoid the need to issue a permit. If the DEP wanted authority to issue settlement agreements without issuing a permit or to waive substantive requirements, it must gain that authority from the legislature. In short, DEP cannot give itself more power than what the law permitted.


Welcome to NJ Environmental Blog

Written by Mike Pisauro on January 7th, 2008 in Uncategorized | No Comments »

Welecome to my first blog. With this blog I will look at environmental issues affecting New Jersey. In upcoming entries I will be talking about global warming, RGGI, renewable energy, and coastal issues. If there is a topic you would like to read about, please let me know at Mike@fplegal.com

-Mike Pisauro