State of New Jersey vs. Tony Novak, et. al.

Baysave was named as a defendant along with its controller Tony Novak in a lawsuit filed May 4, 2018 by New Jersey Attorney General Gurbir Grewal. The lawsuit focuses on properties acquired for stabilization and sustainable aquaculture redevelopment after Superstorm Sandy under a gift/sale to the state. The State does not allege that Baysave, Novak or our associates did anything wrong, but rather that we are the current titleholders of the distressed properties after the state decided that it did not want the properties. The stabilization, recovery,  transfer, sustainability planning and compliance phases are taking much longer than expected and the issues are proving more complex than anyone had hoped.

The underlying issue is that the entire Money Island Marina campus, and in fact most of the small rural port community of Money Island, was built more than a half century ago without building permits, water well or septic system permits, land surveys, tideland leases, etc.

Before Superstorm Sandy, we agreed with the state on a solution to these issues. We assumed these properties would be acquired by the state like other local working waterfronts and that would transfer these issues to the state to deal with (as happened with other local marinas like neighboring Fortescue). Our verbal and written communications indicated that the state would acquire these properties at our cost and lease them back to local watermen just like Fortescue State Marina. But in the years since Sandy, none of this has actually happened. The state switched from being a cooperative partner with Baysave in our restoration efforts to being an unreasonable adversary. We don’t know why. We suspect the action is not taken in good faith.

The lawsuit comes down to this: the government has declined at least 15 permit applications, license applications or pre-application inquiries since Sandy and is now suing us because those same permits are not issued.  It is, in our opinion, unconscionable for the state to be both the denier of permits based on false assumptions and simultaneously bring charges for failure to have permits that should have been addressed decades ago.

Most significant in this matter is the observation that the NJDEP abandoned its normal problem-solving mechanisms (pre-permit planning meetings, application review and comment and alternate dispute resolution) to opt for decline of applications and direct to lawsuit with no attempt at resolution. One NJDEP program director said that this was the first time in her career that she saw this pattern of action by her department and so she did not know what to advise.

Public officials like State Senator Van Drew wrote letters on our behalf to urge the state to act reasonably to communicate and negotiate a solution. Public support and political endorsements have had minimal impact.

We are asking the State to the legal prosecution of this case to allow time for consideration of the issues in dispute. We are asking the Governor’s office to force the NJDEP to discuss the errand assumptions underlying their complaints and discuss ways to resolve the problems that does not include suing the people trying to recover from Superstorm Sandy.

Here are the legal documents:

Serving a cash-based community

One of the challenges facing the local bayshore community is the lack of electronic banking. There are no bank branches or full service ATMs in our township. Banking typically requires a 25 minute ride into a neighboring larger town. We have no high speed Internet and cellular connections are not always reliable.

The effect is that much of the local economy is based on cash. That brings additional challenges and expenses. Businesses that try to move to electronic transactions face challenges and may alienate parts of the customer base, especially lower income people. CBS News covered this topic today in an article bringing fresh insight into the issue.

We recognize this issue as just one more challenge facing the businesses in our region. There is no easy answer.

Government relations priorities for 2019

Blue Claw Crab Industry

  • The fishery is healthy. Crabs have the biological capacity rebound quickly after our worst environmental challenges.
  • Blue crabs are the only commercial species in New Jersey expected to benefit from the long-term effects of climate change.
  • We have a great local crab research resource from Rider University.
  • Expansion of infrastructure markets and local processing is planned
  • A $15,000 grant in 2018 from New Jersey Community Capital allows for development of an independent crabbers cooperative facility

Bottleneck: Of the 312 commercial crab licenses issued in New Jersey, far less than half are utilized. The state restricts transfer of idle licenses except within a family. Senator Van Drew believed this would change years ago but this remains the #1 artificial restraint on the industry. Without licenses, growth in the industry is stalled.

What we are asking: Increased pressure by the legislature on NJDEP to implement the license transfer policy previously approved to allow for use of idle commercial crab licenses.

Oyster Industry

  • The Nantuxent Creek at Money Island is identified as the #1 preferred choice for a productive type of oyster aquaculture called “FLUPSY” (floating upweller system) that acts as a nursery. This technology has the potential to grow the industry by more than tenfold, as it has in the Chesapeake Bay.
  • Several oyster companies are considering expansion of aquaculture at Money Island New Jersey. The NJDEP blocked initial efforts to obtain infrastructure permitting in 2017 and now Attorney General obtained a court order to shut down half of the docks.
  • Approval of dredging plans for the Nantuxent Creek was recently announced.

Bottleneck: In 2017 NJDEP discouraged a major seafood company from submitting a permit application, saying that such redevelopment permit would not be issued based on lack of permits at other nearby sites.

What we are asking: State government to redevelop on a site-by-site basis one step at a time rather than a whole community basis.

 

Recreational and educational use

  • Money Island is called the ‘unpolished gem’ of New Jersey’s Delaware Bay shoreline. It is the smallest and most remote shore point in rural Downe Township.
  • Money Island Marina was the region’s most diverse, inclusive, affordable and accommodating public facility managed by Baysave with public donations and modest member dues.
  • This location offered the only floating docks open to public fishing, is a preferred spot for bird watching and kayaking, picnicking, etc.
  • Money Island is the preferred location equidistant between C&D canal and Cape May for a DOT transient boat dock program primarily funded through the federal government.
  • All five local New Jersey universities in this region and even two universities from Pennsylvania conduct marine and environmental research here.

Bottleneck: A lack of funding for permitting applications has caused a delay. The Attorney General recently obtained a court order to close the facility to the community to public use until permitting is applied for.

What we are asking: A commitment by government to allow more time for funding of dock permit applications and to support Baysave in forming a public/private partnership for multi-use facilities at Money Island.

What’s ahead at Money Island?

We are excited about the future of Money Island, New Jersey as a host site for a wide range of bayshore users. In the fall of 2018 the Money Island Marina was closed for permitting and redevelopment and all but two of the houses on the eastern side of the island are being removed. By spring 2019 an expanded natural area will take their place. We expect to host new research projects and are planning for expansion of new private uses for 2019 that do not require government permitting. Government is considering the addition of a “welcome center” at the site of the marina but no deal has been reached yet. Meanwhile Baysave will continue many of membership-based activities that are consistent with the new planned uses of Money Island. We anticipate a decline in recreational fishing but an increase in overall tourism and an increase in other types of recreational boating activities.

Over the next few years most of the houses on the western side of the island will be removed while commercial operations expand in the creek. Money Island will dramatically grow in both financial importance to regional aquaculture.

Since 1990 we’ve lost about half of our dry ground at Money Island due to rising water and sinking land. We’ve taken dramatic action to address it: installation of a 440 foot seawall, redevelopment of stronger commercial boat docks, raising of the roadway and parking areas, rebuilding key infrastructure. Now we must embrace the inevitable future of higher waters. Future community planning will be water-based rather than land-based. Wet flood proof facilities and mobile infrastructure are already the standard for new projects here. That shift in reality will require massive change in thinking that will pose challenges to traditional systems and government.

Money Island NJ

Recreational boating activities have been in decline here for many years. Over the past eight years he marina was partly supported by Baysave’s charitable donations (mostly from me and my family) until the state ordered the facility closed in 2018. Because of slow progress on required engineering and permits. We have previously proposed converting to a state marina like Fortescue State Marina. That would allow us to pay an annual lease fee that is based on revenue rather than the current unworkable charges for permitting, property taxes and tidelands lease fees that are much larger than the marina’s maximum possible revenue. Another proposal is to operate like Spring Garden Marina that replaced its floating docks with a boat lift. Both of those options have been proposed as long term solutions for the marina but first we need to resolve current community planning issues.

Commercial aquaculture is at the beginning of a boom growth phase. We could easily see Delaware Bay production grow by ten-fold or twenty-fold simply by adopting simple technology widely used in the Chesapeake Bay. We don’t want to give the impression that Money Island is “going away”. It will certainly be different, but will remain an important part of this region’s culture and economy.

Baysave remains committed to serving a wide range of user groups ranging from sightseers, bird watchers, dog walkers, recreational fishing, commercial netters, oyster harvesters, crabbers, recreational boaters, research groups, and many more. We recognize the challenge in keeping everyone happy and welcome your input into our future.

Baysave announces 2019 environmental priorities: permitting and plastics

At its December 2018 meeting, the Board of Directors of Baysave Association resolved to take additional steps toward cleanup and legalization of previously abandoned properties at the New Jersey bayshore. The resolutions include an approach to federal and state government permitting and an approach to addressing plastics in local waters. These two programs – permitting and plastics – will be the focus of Baysave’s 2019 environmental agenda.

A strategy to approach permitting on a site-by-site basis was approved to allow us to partner with, sell, or gift land to others who may have similarly aligned environmental and sustainable community redevelopment interests. It is unclear whether the NJDEP and NJ Attorney General will agree to this plan since in the past the department has taken an unusual “whole community” approach at one cleanup location and has declined pre-permit requests for addressing individual site cleanup issues. The Controller is authorized to lobby local and state government to support this more practical cleanup approach.

A plan was approved to remove waste plastics that are already in our waters as well as to reduce overall future reliance on plastics in the future. This past year the NJ Fish and Wildlife bureau and some Baysave members noticed a problem with plastic shell bags used in oyster reef restoration.  We will discontinue the use of these bags on our sites and advocate for their replacement in other sites. The board resolved to commit funds and volunteer labor to remove Styrofoam floats from the water and replace the Styrofoam with more sustainable materials. This program will need additional funding. The Board authorized its Controller to seek additional grant funding for this project.

Baysave renewed its commitment to run its multi-user facilities at Money Island New Jersey provided that funding is available through future grants. The former Money Island Marina community is being converted to a nature preserve through combined action of the NJDEP Blue Acres Program and the NJ Attorney General. Public access will continue to be based on membership, however support for boating and docking activities is discontinued until and unless allowed by law.

For more information, contact Tony Novak, Controller, at tnovak@baysave.org.

 

Local aquaculture hopes to coordinate efforts with state government in 2019

From a local aquaculture perspective, 2018 was not a productive year for legislative action. At the end of 2017 we had plans to move forward on a number of issues but that just did not happen. The recent campaign where our state Senator Jeff Van Drew was elected to the US Congress was apparently a big part of the reason for lack of focus on our intended issues. The legislator’s staff told me that their just wasn’t time in the schedule. I hope to change that in 2019. I just sent this e-mail message to Assemblyman Bruce Land and Assemblyman Bob Andrzejczak in hopes of scheduling a meeting.

At the beginning of 2018 we had high hopes of progress in a number of aquaculture-related issues that I’ve previously discussed with Senator Van Drew and communicated with Jon Atwood. Unfortunately with the recent election and other distractions, we saw little progress on local issues. We would like to get your input and opinion on these open issues:

– A master plan for sustainable redevelopment of South Jersey’s second most productive seafood landing port.

– Coordination of private and public community redevelopment funding that has been out-of-sync lately.

– Stalled regulation reform for transfer of commercial crab licenses.

– State’s treatment of the new watermens’ cooperative.

I would welcome the opportunity to come to your office to discuss the local industry planning for 2019 to ensure that our efforts are in sync with legislative priorities.

Tony Novak, Controller

Baysave

Aquaculture, by its nature of existing on state-controlled waters, must coordinate closely with state government. For years now major aquaculture investors have been waiting on the sidelines for a sign that state government will support expansion of the industry. The reverse effect – the demonstration that the state attorney general was willing to sue aquaculture companies with pending or stalled permit applications – sent shivers through the local industry. The last word I heard from an industry lobbyist was that his clients planned to wait and see what happens with us at Money Island before venturing forth with their own money.

We appreciate the ongoing efforts of Downe Township and Cumberland County officials. But we really need the state government to be on-board with the local and regional planning and funding to allow us to move forward.

Goodbye Bayview Road

Tomorrow my neighbors’ houses on Bayview Road at Money Island NJ will be torn down by a state contractor. Hardly a day goes by when someone doesn’t ask me “Why?” Yet even with as many times as I had to respond to this question, I still don’t have a neat concise answer. More disturbing, I don’t have an answer that I really believe. Some former homeowners here would say they were unable to handle the high costs associated with rising water levels. Others, like our mayor, call it “NJDEP terrorism” as the state threatened massive fines against us without offering any source of funds to address the new environmental challenges. At least a few of my former neighbors would say they were just scared away by what they saw happening around them.

I still wonder about the thought process that went into my neighbors’ thinking about selling and moving out that caused them to act differently when negotiating with the state compared to what they told me in person when we talked last. I was surprised  and apparently the local government was equally surprised that 100% of the neighbors across the bridge elected to sell their properties. The overall buyout completion rate is 80%, according to NJ Blue Acres office, indicating that normally a few houses remain after a buyout. It might have had to do with the bridge itself that was badly corroded and appeared to be collapsing prior to the buyouts. Ironically, the bridge repair and seawall construction were completed after the buyouts were planned.

No doubt this is am emotional and sad time for many. Looking at the photos, I think of the happy times I’ve had as a guest in many of these neighbors houses in earlier times.  I also think of the few neighbors who later blamed me for causing the state to acquire these houses.  I try to not think too much about the bizarre events that led to death threats and even an attempt on my life by an angry neighbor and a politician for my role in trying to preserve this community.

After tomorrow only two houses will be left on Bayview road. My home office is one of the two and this site is proposed as a research/educational facility for the future. The only reason these two properties were spared the devastating impact of higher and more violent wave action is because we are protected by a half million dollar sea wall, sand berms, and more sturdy pilings that elevate the buildings.

Many other questions come up at a time like this. Is the state’s strategic retreat policy sound? (Surely we can’t afford to relocate our entire New Jersey coastal population inland!)  Will we be besieged by another round of ‘disaster tourists’ after the tear downs (like after Sandy)?  Or will the area’s use as a nature preserve bring positive change? Will the state step up it’s legal harassment against the two remaining homeowners?  How will we cope with wilder wetter weather and the flooding ahead? What physical accommodations will be necessary to accommodate higher water levels and more damaging erosion?  Will my floating barge-based infrastructure construction designs  gradually become accepted under state regulations or will  I continue to clash with the older dry land building codes? We just do not know the answers to these questions yet.

We do know that the future of Money Island is bright. It is the region’s second most productive seafood landing port. The local seafood industry is now entering a significant growth phase based on new technology and changing water conditions. Money Island remains an important research and recreational spot. Millions of dollars are being spent here to sustain and redevelop the area in a sustainable future.

We also know that we won’t be the last residential community to grapple with these strategic retreat questions related to the removal of homes. I just wish we weren’t among the first to have to figure out where to go from here.

Shocking climate change forecast

Yesterday the federal government of the United States released the most shocking and stark assessment of our lives, forecasting severe problems ahead in coming decades. The report is compiled by several different government agencies. Late Wednesday on the eve before Thanksgiving the Trump administration, apparently in an effort to minimize the shock to the American people, moved the scheduled release date of the report from December until late in the day on Black Friday. Now we understand why.

The findings and forecasts included in yesterday’s Fourth National Climate Assessment report are more stark and shocking than anything we’ve read so far.  This blog post is a collection of excerpts from the report that most strongly affect us at the bay.

Findings most directly affecting us at the bay

“The assumption that current and future climate conditions will resemble the recent past is no longer valid

“Global annually averaged surface air temperature has increased by about 1.8°F (1.0°C) over the last 115 years (1901–2016). This period is now the warmest in the history of modern civilization.”

it is extremely likely that human activities, especially emissions of greenhouse gases, are the dominant cause of the observed warming since the mid-20th century

“In addition to warming, many other aspects of global climate are changing, primarily in response to human activities.”

“Global average sea levels are expected to continue to rise—by at least several inches in the next 15 years and by 1–4 feet by 2100. A rise of as much as 8 feet by 2100 cannot be ruled out1. Sea level rise will be higher than the global average on the East and Gulf Coasts of the United States.”

Heavy rainfall is increasing in intensity and frequency across the United States and globally and is expected to continue to increase. The largest observed changes in the United States have occurred in the Northeast.”

“over the next few decades (2021–2050), annual average temperatures are expected to rise by about 2.5°F for the United States”

“Without substantial and sustained global mitigation and regional adaptation efforts, climate change is expected to cause growing losses to American infrastructure and property and impede the rate of economic growth over this century.”

“While mitigation and adaptation efforts have expanded substantially in the last four years, they do not yet approach the scale considered necessary to avoid substantial damages to the economy, environment, and human health over the coming decades.”

“Rising temperatures, extreme heat, drought, wildfire on rangelands, and heavy downpours are expected to increasingly disrupt agricultural productivity in the United States. Expected increases in challenges to livestock health, declines in crop yields and quality, and changes in extreme events in the United States and abroad threaten rural livelihoods, sustainable food security, and price stability.”

“Our Nation’s aging and deteriorating infrastructure is further stressed by increases in heavy precipitation events, coastal flooding, heat, wildfires, and other extreme events, as well as changes to average precipitation and temperature. Without adaptation, climate change will continue to degrade infrastructure performance over the rest of the century, with the potential for cascading impacts that threaten our economy, national security, essential services, and health and well-being.

Coastal communities and the ecosystems that support them are increasingly threatened by the impacts of climate change. Without significant reductions in global greenhouse gas emissions and regional adaptation measures, many coastal regions will be transformed by the latter part of this century, with impacts affecting other regions and sectors. Even in a future with lower greenhouse gas emissions, many communities are expected to suffer financial impacts as chronic high-tide flooding leads to higher costs and lower property values2.”

Outdoor recreation, tourist economies, and quality of life are reliant on benefits provided by our natural environment that will be degraded by the impacts of climate change in many ways”

Baysave immediate response

Since its founding in 2010, Baysave has adopted and worked with earlier forecasts from government and academia that climate change is the world’s #1 greatest challenge. This issue has been at the core of our mission. But this new report issued by the the federal government is far more stark than we have realized and planned for in our strategic and operational guidelines to date. We can immediately conclude:

  • This report sets a new legal standard of care for management of public and private institutions. Those who state that they don’t ‘believe’ in human-caused climate change and subscribe to official government mitigation strategy expose themselves and their organizations to civil and perhaps criminal liability.
  • Our future is more bleak than we realized, and shocking disruptive change will come sooner than we realized.
  • Our own current climate change mitigation and response plans are inadequate. Likewise, the larger communities plans, like the Cumberland County Delaware Bayshore Recovery Plan, are also inadequate.
  • The Trump administration’s handling of the release of this major news indicates that that there will be political wrangling ahead that will increase our strife and damage. We do not expect direct logical response by government.
  • The government officials who compiled this report have changed the path of this nation’s government and maybe the future of the world.
Fourth National Climate Change Assessment photo
Fourth National Climate Change Assessment

Baysave’s only logical response is to re-assess our business plans and strategy in light of this shocking new information.


Footnotes

1 This is the first admission by government that past forecasts have substantially under-estimated the impact of climate change.
2 This is a stark warning that the revenue base of east coast communities – real estate taxes – will be destroyed.