NJAS Opinion: Winter, 1991

On 29 May 1990, Richard Kane, NJAS conservation director, testified at a federal hearing conducted by the Environmental Protection Agency and the U.S. Army Corps of Engineers on the Environmental Impact Statement (EIS) being prepared on the Special Area Management Plan (SAMP) for the Hackensack Meadowlands District (HMD). His remarks at this hearing follow:

In general, New Jersey Audubon Society believes that the Hackensack Meadows wetlands are a very valuable resource for both nesting and migratory wetlands species such as herons, waterfowl, shorebirds, raptors, blackbirds, and rails. Additionally, the district has a strong complement of state endangered and threatened species; it is a regional oasis in an area of intense development; and it is accessible as a wildlife preserve to literally millions of people because of its location. We also believe that the remaining 7,000 acres of wetlands (out of a district acreage above 20,000) need to be preserved so that the Meadowlands will continue to function as a healthy estuary. We believe that further development in the wetlands will eventually degrade adjacent wetlands by cumulative adverse impacts over time and that the primary effort of the SAMP process should be to plan creatively for the diversion of development to non-wetland sites, in and out of the district, so that wetlands will be protected. We believe that the three mandates of the HMDC (environmental protection, garbage disposal and development) are not co-equal, that environmental protection is prior in importance to the other two, and that it is the necessary condition within which the other two need to be planned. Consequently, we believe the following issues need to be addressed within the scope of the EIS.

First, alternative sites to wetlands for nonwater-dependent uses need to be located within the district on vacant parcels, on redevelopment sites, and outside of the district in neighboring communities. This needs to be done for several reasons. It is required by the Clean Water Act for protection of waters and wetlands, and that requirement followed the first HMDC Master Plan by several years; the SAMP will have to recognize that. Moreover, it may well be true that some HMDC objectives such as number of units of housing or amount of warehouse space are not achievable within the district. The process should not start with a determination of the extent and location of allowable fills. It should start with the location of alternative sites, since the presumption has to be that most types of development are not suitable in wetlands.

The concept of "allowable fills" creeps into the scope of the EIS because of the classification of wetlands into high, moderate, and low categories. The vast majority of the HMD wetlands are not low quality (over 90 percent). Of those wetlands which are so-called low quality, a distinction needs to be made between those which are irreversibly degraded and cut off from a water source, and those wetlands which are stressed, but capable of improvement as a result of placing a pipe or culvert or gate to restore good conditions. The EIS should emphasize the conservation of wetlands, not the concept of allowable fills.

On the subject of mitigation, the EIS should reflect extreme caution. Mitigation is always a last resort. It is untested long term, and it almost always means a net loss of wetland acreage. While a single project may not have a severe impact on the estuary, the cumulative loss of wetland acreage from a number of projects may be severe, despite enhancement efforts. Development impacts may degrade over time both the mitigated or enhanced properties and the adjacent wetlands. Mitigation as a penalty for violations will always be necessary; there should always be both a fine and mitigation so that there is a real disincentive to violate. But mitigation should never be a quid pro quo for a permit decision, or a substitute for permit denial.

We do not subscribe to the argument often heard today that only by permitting development in wetlands can we provide the private mitigation dollars to improve other wetlands. We find that line of reasoning circular and self-serving. The end result of permitting development in the remaining HMD wetland will be to reduce the wetland acreage in the HMD and to stress over time the remaining adjacent wetlands. The effect of frequent mitigation projects in the estuary will be a patchwork of fragmented wetlands which are less valuable for all wetland functions than large contiguous areas. While the HMDC has conserved some of the best wetlands in the district, it has not yet got enough wetlands in protection ownership.

The EIS should also pay attention to the effect of "allowable fills" on wetlands classifications. Wetlands are dynamic, not static. They can change over time; witness Kearny Marsh East and Kearny Marsh West. Today's low quality wetland may be tomorrow's moderate or high quality wetland. Conversely, allowing a fill nearby may adversely affect today's high quality wetland and render it moderate or low. We do not want to see that become an argument for further development. There is a persistent notion around today that because an area has been stressed (particularly urban wetlands and waterways in the New York-New Jersey area) it is all right to develop it further because it isn't pristine. This argument was used recently in the Arthur Kill spill discussions. This argument takes no account of biological facts and leads to a double standard - one for urban areas and another for the rest of the state.

Compliance with federal and state laws is another issue that the EIS needs to address. The first is the preeminence of the Clean Water Act over the HMDC mandates. The SAMP needs to recognize that in planning for the district. Protect the wetlands first, and then take care of permissible development and garbage. Secondly, the special status of the HMD should not put it out of sync with other conservation and planning efforts. Although the HMD is exempt from the Freshwater Wetlands Protection Act and although it is its own agent under the Coastal Zone Management Act, the wetlands protection effort in the Meadowlands should not be weaker than those two programs in the rest of the state. Further, the Memorandum of Understanding (MOU) between the SAMP partners should also include the Fish and Wildlife Service. Every effort should be made to adopt the amendments proposed by the Fish and Wildlife Service to make explicit the preeminence of the Clean Water Act and the service's authority under the Endangered Species Act and the Fish and Wildlife Coordination Act in the Memorandum of Understanding. This is necessary in order for the Fish and Wildlife Service to become a full signatory party to the MOU. Since the service is a commenting agency, it is desirable to have the service involved in the process up front. The EIS for the SAMP should also reflect a concern for the State Plan, which contains provisions for the conservation of sensitive areas while ordering development around infrastructure availability.

Richard P. Kane

Director of Conservation