Time to rethink the basis of environmental regulation

“You only have power over people as long as you don’t take everything away from them. But when you’ve robbed a man of everything, he’s no longer in your power — he’s free again”. – Alexander Solzhenitsyn

For all of our modern times, government has regulated environmental organizations with a combination of threats, intimidation, and fines. Overall, this system has been pretty effective in mooting the possibilities of most types of innovation and environmental improvement. Environmentalists with visions of improving their world are routinely knocked back into mundane roles through such government enforcement actions. We’ve seen several examples here in the New Jersey in recent years, even from the most powerful environmentalists in organizations like the Partnership for the Delaware Estuary, The Nature Conservancy and Rutgers University.

About a decades ago residential and business property owners in our own community began reporting that NJDEP officials were demanding payment of ‘offset credits’ simply because sea level rise had changed the nature of their structures from dry land to above water. This form of action is viewed by some local property owners as legalized government extortion. Government’s reaction to sea level rise has changed the fundamental possibility of future use of shorefront properties. Many of the properties here used to be 100% on dry ground in the 1950s are now 70% below the water line. Values have fallen dramatically and most owners are underwater financially as well as physically. This enforcement action effectively put a halt to our plans to open a nature observatory at Money Island. The costs of compliance extracted by government are simply too high to allow for shoreline development of non-profit ventures like a nature observatory.

Then in 2010 NJDEP Commissioner engaged in a battle against oyster reef restoration efforts including our own at Money Island. While some projects were relocated, ours were simply abandoned. We don’t have the manpower to relocate and we really need the living shoreline restoration efforts here. Likewise, we’ve faced resistance on dune restoration and it has been difficult or impossible to get permits for living shoreline restoration. In 2015 a group pf environmental organizations teamed up to push permitting through for some projects. But these are largely experimental projects; not the type of proven shoreline stabilization techniques that we badly need to implement sooner rather than later.

Lately I’ve been engaged in a battle to bring properties up to standards in modern wastewater handling. The local and county governments have a solid plan to bolster wastewater treatment facilities but that pan is not moving fast enough to satisfy the NJDEP. Instead of pushing and helping government implement their plans, the state has allowed the NJDEP to threaten property owners instead.

In 2014 the NJDEP issued a dubious water test report that was later admitted to be faulty in design and execution by its authors. The intent of the report was to prove that the septic systems of certain human residences were polluting the bay. The not-so-hilarious thing was that the report singled out specific abandoned homes with photographic evidence to support its conclusion. In fact, there is no such proof and dozens of other water test results before and after show bacteria level at normal expected and acceptable levels. Still homeowners are feeling the pressure because the cost of compliance often exceeds the value of their shore front homes. Some of these owners donated their properties to BaySave for the purpose of transmittal to the state or to find a resolution. I work with many levels of government and private enterprises and conclude that there is no immediate solution to bring government and residents into compromise. This is where the story gets more disturbing.

The NJDEP now sends letters threatening fines of up to $50,000 per day to these low-income and mostly unsophisticated local residents. I pointed out to the state officials that these residents are already financially ruined by sea level rise, have no other assets or income and that they have been praying for the state to take possession of their property or relocate them to offshore locations. The state offered to buy their houses for $20,000 to $30,000 but that’s not enough to pay off their existing mortgage debt let alone leave money to allow them to buy another home. These residents have no financial ability to comply and no reason to fear additional fines. Their properties are worthless (based on value less mortgage less taxes) and, for the most part, have not been occupied since superstorm Sandy. Some of the best minds in New Jersey’s think tanks – the NJ Bar Association, The NJ League of Municipalities, NJCPA, NJ Plansmart, for example –  have volunteered their help on this issue but have been unable to come up with a solution. It is unreasonable to expect NJ’s property owners to do this on their own,

In BaySave’s case, the NJDEP and various other government agencies have already issued fines, levies, liens and taxes that far exceed the property’s value. All of this happened long before we were involved. Volunteer efforts are focused on digging our way our of the hole to reestablish a sustainable shorefront resource for the community. That’s how BaySave came to own the properties; the previous owners simply couldn’t handle these government aggressions either from a financial or psychological perspective and they recognized that we stood a better shot at success. Some owners have chosen to make their donation public by filing the deed. Most have not, and prefer to keep their financial affairs private. If these owners do have other assets, they fear that these might be at risk if the New Jersey government chose to pursue prosecutions of alleged environmental violations. The smart decision was simply to donate their properties to an environmental organization. I expect these types of property donations will continue to come as long as government makes threats without offering viable solutions. We agree that the problem is financial but that’s as far as we get. I want to talk financial solutions while the NJDEP wants to continue to talk fines and enforcement.

My point is that in the past environmental regulation was based on a premise that property owners had something to lose. Now that a growing number of waterfront properties in New Jersey will have no net economic value, we need to rethink the strategy. The abandonment of property is a real and growing problem. Partnering with, rather than threatening environmental organizations is the path we need to follow.

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