New Jersey Audubon Magazine
SPRING 2001 EDITION
William R. Neil, Director of Conservation

December 12, 2000
Updated January 3, 2001

GREEN FIASCO: WHY CARA (H.R. 701) UNRAVELED

How does major legislation that has harvested the support of over 5,000 environmental, civic and religious organizations, all 50 Governors, the President, the U.S. Conference of Mayors, the U.S. Chamber of Commerce, and which passed the House of Representatives on May 11, 2000 by an overwhelming 315-102 vote, get derailed this past Fall and pass as only a pale skeleton of its proposed 15 year, $45 billion dollar self - and without ever coming up for a floor vote in the Senate? How indeed did this happen? We are referring of course, to the Conservation and Reinvestment Act (CARA) which, by its sheer scale and price tag, if not its policy substance, should have stood as one of the landmark pieces of environmental legislative history. CARA would have fully funded the Land and Water Conservation Fund at $900 million per year, something which conservationists have been trying to achieve since it was set up back in 1964. And it would have seen to it that the money was actually spent for its authorized purposes, since the money theoretically has been available from its source in the proceeds from existing oil and gas leases. But of course CARA would have done a lot more, such as funding research and programs to protect non-game species in all 50 states. But there always was a high, but in our opinion, not unreasonable cost to getting the legislation through: it had to have some big "sweetener" for coastal states, especially Alaska and the Gulf states - two regions not politically favorably inclined to spending more federal money for land acquisition. And this coastal assistance and the possible linkage, through incentives to further offshore oil and gas drilling, sent up warning flags among many major national environmental groups. But we thought their worries had been greatly reduced by compromises made to get the bill through the House in May and a key Senate Committee in July.

Now in our opinion, in a properly functioning democracy, one does not tamper lightly with the public will expressed in a 315-102 House vote. One needs very good reason to reject that type of mandate - like a constitutional one, or strongly held moral belief. So how does the Senate eviscerate legislation expressing the will of the people? Well, a cynical interpretation, which we must consider but can't prove, might say that the House vote was only partial cover for a popular green cause, but insincere because the House knew it would never make it through the Senate. So what was the problem on the Senate side, given Senate Majority Leader (Republican, Mississippi) Trent Lott's support? Well, the best explanation we've seen, and we reserve the right to change our opinion as new evidence comes in, is the one presented in a Baton Rouge, Louisiana paper called the Sunday Advocate in a October 8, 2000 article headlined "Duplicity killed the CARA bill." The basic outlines are that the White House and George Frampton (head of the White House Council on Environmental Quality) always leaned towards their competing "Lands Legacy" proposal, which did not involve the coastal angle worked into CARA, and they struck up an alliance with western interests and Congressional appropriators (like Rep. Ralph Regula of Ohio) who didn't like CARA reducing their traditional discretion in controlling how money is spent. Plus, the national environmental groups most uncomfortable with the coastal deal gave cover to the vastly reduced compromise that was passed as part of the House Interior Appropriations bill on October 3, 2000. Oh yes, and Trent Lott, despite his public support for CARA, apparently refused to schedule CARA for a Senate floor vote, fearing the time that would be lost in fighting off a filibuster (our side had the votes, 63, necessary to overcome a filibuster), time that could be better spent campaigning. Additionally, and a reason not to be underestimated, is the fact that "his budget leaders fiercely opposed CARA." So, the paper concluded: "Yes, both Clinton and Lott said they supported CARA. But neither did what was required to rescue it. That was far more than a failure to act. It was duplicity. Both said one thing and did something else."

We think you ought to know what our New Jersey Delegation did about it. In support of H.R. 701, the genuine article, our entire delegation voted for it on May 11, 2000. But when the watered down version was voted on as part of the Conference Report for the Department of the Interior Appropriations for FY 2001 on October 3rd, (H.R. 4578, Roll Call #507), they all did a 180 degree turn and voted for "CARA lite," except for Bob Franks (R, D-7) who did not vote. Some have pleaded with us to take a look at a preliminary skirmish to waive "points of order" against the conference report (Roll Call # 506) held on the same day, where presumably if one was defending CARA one didn't want to waive these points. But only three NJ Reps. stood their ground for CARA before reversing themselves on the final vote: Reps. Andrews (D, D-1), Holt (D, D-12) and Saxton (R, D-3).

So, what can you do about it? We urge you to call your Representative at 202-224-3121 and let them know, if you agree with us, how disappointed you are in what happened. Our two Senators, Democrats Jon Corzine and Robert Torricelli also need to know the public is dissatisfied. Tell them we expect the full CARA to be reintroduced in the next session of Congress.

P.S. When we have a clearer accounting of which environmental groups did what in this debacle, we'll share it with you. Suffice it to say now that the National Wildlife Federation was exemplary in the way they stuck to the good bill and criticized the shabby substitute. Their analysis of what we did get with "CARA Lite," is as follows from Ben McNitt: "Congress passed a $1.2 billion conservation appropriation for this year, assumes another $400 million will be appropriated for coastal programs during the year, and promises to consider additional funding of $10.4 billion in the succeeding five year...CARA would have provided nearly $3 billion each year for the next 15 years in guaranteed conservation funding." As we write in early December, some 50 million in wildlife funding to be allocated to the states according to CARA's formula is still pending in unfinished Congressional bills.

Conservation Update, Jan. 3rd 2001:

President Clinton signed the Commerce-Justice-State Appropriation bill on Thurs. Dec. 21, 2000, and it contained $50 million that will be equitably distributed to the State's based on the CARA formula, and it can be used for non-game species programs. This compares to the $350 annually that full CARA would have delivered. We are not hearing encouraging things about the national groups going for the full blown original CARA. They seem to feel that they will never get it in one piece, so who knows how they will approach this even more divided Congress.

STATE REPORT

Cranberries on the Dole: A Public Policy Debacle

It started out poorly in 1995 and now it has ended badly not just for environmentalists but for taxpayers. NJ Audubon didn't think our cranberry growers needed to expand into 300 acres of wetlands - we thought the industry was doing very well back in 1995, and that upland conversion to bogs was possible, as is done often in Massachusetts. We felt that a slower process through Individual Permits was best. But not the New Jersey growers, most of whom belong to the Ocean Spray national cooperative. In press article after article, our growers said the only thing between them and cranberry heaven was supply. Demand? No problem. Well, they got their wish. And not just 300 acres, but at the very end of the process, in September of 1999, we learned from Steven Lee that they had added 400 acres of bogs in "recent years" that were never disclosed in the formal hearings or three trips to the NJ Register. So they will have 700 acres of new bogs. Great.

New Jersey Department of Environmental Commissioner (NJDEP) Commissioner Robert Shinn saw fit to issue the permit in 1999 despite the fact that the Star Ledger newspaper had documented a full-blown production glut by November of 1998. With the admission by Mr. Lee of recent expansions and startling revelations of illegal bog expansions and growing chemical use by the US Fish and Wildlife Service in August of 1999, Commissioner Shinn still said it was fine with him, give them what they want. And from then Attorney General Peter Verniero, we got nothing but silence when we asked him to hold the General Permit until after Commission Shinn's tenure, because of Shinn's well known previous economic and political connections to the cranberry growers. We felt he had lost perspective on the issue.

Now you the federal taxpayer will be kicking in $50 million dollars to bailout an industry which relentlessly pursued bog expansion throughout the 1990's and did so in NJ despite the clear glut warnings. Taxpayers need to know that behind this bailout is one of the most aggressive political $ giving and lobbying efforts ever seen in the agricultural sector. According to the Center for Responsive Politics, Ocean Spray ranked #1 for fruit and vegetable growers in the 2000 election cycle, giving $360,500 in hard and soft money and to 56 members of Congress. In just 1997 alone, Ocean Spray paid $400,000 for a top Washington lobbying firm with expertise in those regulatory areas which earlier helped Ocean Spray win a Nationwide General Permit. Between 1990-2000, Ocean Spray gave $1.6 million in hard and soft money to both parties. In some years, their spending exceeded that given by Dow, DuPont and General Motors. Giving, in other words, disproportionately to their size. We think the environment and taxpayers have been very badly served by Commissioner Shinn. He should rescind the General Permit. The taxpayer assistance should be "means tested." Unfortunately, it will be the small growers who get plowed under.

New Threat to Liberty State Park: Water Park

Will the commercial schemes for the interior 240 acres of Liberty State Park never cease? It appears not, even after Governor Whitman, years ago, properly put to rest a golf course proposal that was wildly unpopular with citizens. Now Jersey City Mayor Schundler is advancing another expensive (likely $10-$18 dollars per person fee) commercial proposal for a multi-acre water park for the southwest corner of the interior of the park. Once again, as with the golf course, this proposed use could be an asset for Jersey City area residents, but not on scarce, state-owned open space at Liberty State Park, a very special place. Please see this issue's NJAS Opinion for our vision on what Liberty State Park should become.

A public meeting will be held on alternative visions for the enhancement of the interior 240 acres of LSP on Saturday, Jan. 27th, from 1:30pm - 4:00pm at the Liberty Science Center, Exit 14B off the Turnpike, at Liberty State Park, Jersey City. NJ Audubon supports the least development option with the greatest protection for habitat and wildlife, which should be listed as option 1, but as of today we haven't seen the printed version. What's important for conservationists is to oppose the commercial water park, which is an incompatible use with our vision of having a great natural green park for the interior. Please see our essay on Liberty State Park for the full vision. It would be helpful to oppose the water park and support our call for an international landscape design competition for the plan for the park's interior. But no water park. We have postcards for your convenience, but if you don't get them, drop Cari Wild, Assistant Commissioner at NJDEP a line at PO Box 404, Station Plaza 5, 501 East State St., floor 3, Trenton, NJ 08625-0404. Her email address is: cwild@dep.state.nj.us It also wouldn't hurt to write or call soon to be acting Governor, Senate President Donald DiFrancesco at 908-322-5500 or email him at sendifrancesco@njleg.state.nj.us His mailing address is 1816 Front St. Scotch Plains, NJ 07076.

What Else We're Working On

On Friday, November 3, 2000, the Pinelands Commission voted 8-4 to allow developers to build additional houses, thereby jeopardizing a rattlesnake population which hibernates along Kettle Run Creek in Evesham Township. New Jersey Audubon and the Pinelands Preservation Alliance felt that the "deal" worked out by the Pinelands Commission was "unnecessary. The Pinelands Commission can and should apply its regulations to this development, just like it has to other developments in the past. That course of action would protect the rattlesnakes and the Pinelands Plan." NJAS and PPA along with the Natural Resources Defense Council (NRDC) are weighing possible court action. NJAS Vice-President for Conservation and Stewardship Rich Kane has been our point person for the very complex legal issues involved in this case, aided by attorney and NJAS Conservation Committee Chairman and Board member Wayne Greenstone.

There is a proposed expansion for Atlantic City Airport out on the policy table. Rich Kane prepared NJAS's comments on the Environmental Impact Statement on November 17, 2000. Among the many issues at stake are the undisclosed scope of non-airport development and a large lease of federal land to the South Jersey Transportation Authority, and threats to Threatened and Endangered Species, including grassland bird species (Upland Sandpiper, Grasshopper Sparrow, Northern Harrier and Savannah Sparrow...), wetland species (Pied-billed Grebe, harrier and Barred Owl) and proposed butterfly species (Leonard's Skipper and Frosted Elfin). Contact Rich at 908-766-5787 if you would like a copy of his comments.

A special "protocol" at the NJDEP gives freshwater wetlands in the lower ten kilometers of the Cape May Peninsula a presumption of "exceptional resource wetlands" status, thereby triggering buffers of 150 feet, based on the fact that wetlands in lower Cape May are likely to have had a visit or use from a threatened and/or endangered bird species. Now a ruling on September 6, 2000 by an Administrative Law Judge threatens that presumption unless it can be documented by actual current or past field observations. The case involves a site adjacent to the famous East Cape May Associates site off Pittsburgh Avenue. The strangest thing is that such field evidence does exist, but was turned down by the judge because DEP's submission was labeled "draft." NJ Audubon and Sierra Club wrote a letter to DEP Commission Shinn on October 12, 2000, stating that we have the same field report, not labeled draft, ready to go, and that we also thought the judge was misreading both the law and the regulations, and asking the Commissioner to overturn the OAL judge's ruling. A decision is expected in early December, but we are not optimistic that the Commissioner will do the right thing based on the way the case has been handled up to this point.

Conservation Update, Jan. 3rd, 2001:

Commissioner Shinn did not overturn the Judge's decision on Dec. 7th, 2000. He let it stand while trying to narrow its scope. NJAS and Sierra are considering asking the Inspector General to review the case.

In West Milford, in the Highlands, citizens have been upset by NJDEP's Dam Safety Division's decision to order the lowering of the waters behind an allegedly unsafe dam. Citizens there have contested nearly every point made by the dam and safety people, and indeed, at a public meeting NJAS attended on October 18, 2000 and spoke at, there was not a single property owner who said they felt threatened by this particular dam just downstream of Pinecliff lake, off Rt. 513, Union Valley Road. At stake with the lowering are exceptional resource value wetlands - and wood turtles that had just gone into hibernation. Now, as we write in early December, citizens fear the worst: removal of the dam, something that DEP representatives promised would not happen without a separate public hearing. We know that dam safety should not be taken lightly, but we just don't see the threat or danger here, and neither does the town government. This case and the above mentioned wetland's case in Cape May present us with some very strange behavior on the part of the NJDEP.

Governor Whitman's watershed rules, the subject of so much press coverage in the summer and fall of 2000, still are up in the air as different groups of stakeholders return to revisit the issues with DEP staff, legislators, attorneys and representatives of the Governor's office. All we can say is that the Governor still doesn't know what to do and she hopes someone can come up with a solution to make all sides happy. Good luck. The most coherent policy proposal we've seen is from the Sierra Club's Bill Wolfe. He's outlined a bold course using state and federal Clean Water Act law and regulations. It would be a miracle if Governor Whitman paddles down his policy creek.

Conservation Update, Jan. 3rd, 2001:

We half expect that DEP will have to go to the Governor's office at the last minute to find out what she wants to do, but they will only find a sign there reading "Gone to Washington." We have no idea when the Governor will make her intentions public.

Perhaps she will leave it all to acting Governor Sen. Donald DiFrancesco. Lucky him.

On Dec. 7th, Thursday, we were unsuccessful in our attempts to prevent AR-89 - urging completion of Rt. 55 - from passing a sympathetic Transportation Committee. We expect it to come to the Assembly floor for a vote sometime at the end of January. We'll keep you posted. Rt. 55 would be a terribly expensive (half a billion dollars for some 12 miles) throwback to the old way of highways in NJ and help seal the environmental fate - suburbia for the rest of the upper Cape May peninsula. We strongly oppose it.

On Dec. 18th, Monday, we stopped S-940, the quarry bill from being voted on in the Senate. Actually it was voted on and defeated, but since it didn't have enough votes to pass the chair gives the sponsor, Senator Bob Singer, the option of withdrawing the bill, so no formal vote is recorded. He only got 11, he needed 21. The bill would transfer power of regulation from local govts to a sympathetic govt agency - Dept. of Labor. Bad, bad special interest legislation.

S-1272, which is the developers dream public funding bill (bonds) for their projects, was stopped in mid-November, despite high powered sponsor Senator Kyrillos (R) and Lesniak (D).