Restore Law and Order in the Conservation Area
NJAS Opinion: August, 2001

A recent special report in the Atlantic City Press (Sunday, June 10, 2001) details increasing wetland violations, lack of enforcement of illegal fills, lack of mitigation and deal making instead of penalties. An editorial in The Record (June 13, 2001) points to a serious drop in notice of wetlands violations and fines since 1993, along with a concurrent cut in the Land Use Regulation Program personal of more than 20%. This in spite of the fact that on paper at least, the New Jersey Freshwater Wetlands Protection Act is the strongest law in the nation!

Discovery of an illegal conversion of swamp forest into cranberry bogs results in a controversial land settlement, not a regulatory sting. "Let's make a deal" was also the order of the day in the recent Pinelands Commission approval of a residential development in a protected rattlesnake habitat in exchange for a parcel of land, instead of enforcement under the Endangered Species Act. And the Commission can only muster 4 conservation votes to protect, preserve and enhance! Buffer requirements around wetlands get nonchalanted, with incompatible uses allowed in the transition area. Instead of fines and enforcement, we get endless stakeholder processes and compromises.

A law that is not enforced is no law at all. There is a pervasive pall of permissiveness now around conservation regulations that threatens to undermine and undo what was squarely won in the legislature. It is a product of our age, an unprincipled capitulation to relativism in the protection of natural resources that are vital to our welfare. We need a rapid reversal of this trend before it becomes a cancer.

To that end we propose the following as soon as possible:

* Restore the 20 plus percent cuts in the Land Use Regulation Program to close the gap between violations and enforcement actions.

* Provide an independent stable of consultants, not paid by the developer who are expert in various taxa, to do the endangered species investigations necessary to enforce Pinelands regulations, CAFRA regs, and Freshwater Wetlands regs.

* Use the ample discretion NJDEP has in the critical habitat provisions both of the CAFRA regs and the FWPA (freshwater wetlands) regs to provide sufficient protection for wetland species

* Tie the NJDEP Landscape Project to both the CAFRA and FWPA regulations and to the state Endangered and Nongame Species Conservation Act (ENSCA) so that sufficient habitat around the threatened and endangered species is protected. Since the Supreme Court Sweet Home decision in the 90's, it is clear that habitat destruction amounts to "take" of a species. It is an utter absurdity in the same breath to forbid the take of an endangered species, and then allow the destruction of its habitat so that next year it doesn't reproduce.

* Use article 10 of the Municipal Land Use Law permitting regional zoning to provide conservation zones of low density in areas with clusters of endangered and threatened species

* Establish a Category One (highest) water quality designation on streams with trout and endangered species in all special resource areas such as the Highlands, the national wildlife refuges and the state Natural Areas, so that these areas cannot be degraded after money has been expended for their conservation.

* Restore the Office of Environmental Prosecutor so that violations do not go without penalty

* Restore the Department of the Public Advocate, so that there is somewhere to go when the public interest is not being protected.

We challenge the state to reverse the tide, to become a player and a plaintiff, not a co-defendant. Back up our laws with teeth! Non-enforcement is throwing good money after bad.

Richard Kane, Vice President
Conservation and Stewardship