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:

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.

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.

Slow pace of aquaculture development at Money Island

11/6/2016 – For the past eight years we have been working through the nonprofit BaySave Corporation on necessary legislative and policy reforms to New Jersey’s outdated land use and aquaculture regulations with very little governmental result. During that same time we’ve watched Virginia, Maryland and now Delaware soar past us in this blossoming industry that is crucial to a sustainable future here on the Delaware Bay.

In 2010 New Jersey oyster-focused nonprofits became the target of a NJDEP cease and desist order for oyster restoration research and then in 2015 and continuing into this year became the target of local township’s prosecution on Certificate of Occupancy law for our use of a bankrupt marina property as a nonprofit aquaculture co-op operation in Money Island while we are waiting for necessary government permits. This is surprising based on the strong degree of support expressed by state and federal elected officers and their staff. There is no debate about how powerful aquaculture could be in restoring our local economy. The $20 million annual seafood crop coming from Money Island could increase by tenfold with appropriate government cooperation.

At the pace we are moving, I won’t live long enough to see Money Island established as the hub of aquaculture development here in the state. Yesterday I received this email from the well-respected government relations specialist and political lobbyist for the New Jersey Society of Certified Public Accountants:

“Tony, it sounds to me like you are doing almost everything humanly possible to move this issue forward. Very often, stupid regulations are simply never removed, despite the need for it. All I can suggest is that you stay in touch with Van Drew and that you forward your concerns about these regulations to the NJ Red Tape Review Commission. One other thing you might try is to get more people to write to the Governor on this issue. There is strength in numbers and ultimately all rules are repealed or initiated with the input of the Governor”.

I am already working with State Senator Van Drew, the Governor’s office and the Red Tape Commission (through a peer CPA who is a member of the commission) but have not tried to organize any mass public appeal directly to the governor’s office. Perhaps that is something I need to learn next.

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Six years after Sandy

The government-created “disaster after the disaster” continues to dominate much of our lives at the bayshore. After the physical effects of the storm faded in memory, we continue to battle the effects of government mismanagement that emerged after the storm. 

This month will mark six years since superstorm Sandy devastated our communities. Much of the damage has not yet been repaired and may never be repaired. The telephone line in front of my house, for example, was never replaced. I still have the downed wire that I cut down and rolled up myself during the cleanup when Verizon did not respond to repeated service calls. For most other issues it was a combination of fraud, mismanagement and red tape within the government systems that administer post-Sandy rebuilding programs are mostly to blame.

We have plans to redevelop a new type of sustainable aquaculture-based community. Funding is just beginning to flow. We still lack government approval to proceed with any part of these plans.

Many of the local people who initiated the “No retreat – Save the bayshore communities” campaign have sold their properties and moved out over the past year. Those who remain are deeply entrenched in a battle with government to negotiate a plan for recovery and sustainability.

Some of the issues that specifically hamper Money Island, New Jersey recovery are:

  1. New Jersey Department of Banking and Insurance declined to investigate sales practices of insurance companies that sold inappropriate and inadequate coverage.
  2. The National Flood Insurance Program admitted fraud and mismanagement in handling flood insurance claims but continued to deny payment on those claims anyway. Policyholders have been forced to settle for lesser amounts or give up die to high legal costs of pursuing their claim in court.
  3. Most recovery programs were denied to homeowners and businesses on the New Jersey bay shore region. We read that 98% of all post-Sandy Small Business Administration loan applications were denied.
  4. Almost all of the applications and project proposal applications for post-Sandy recovery work at Money Island have been denied.
  5. On Monday June 11, 2018 when NJ activist Doug Quinn addressed FEMA administrator Brock Long about specific policy provisions at the National Flood Conference in Washington, DC on Monday to address the Congressman’s’ letter this week, NFIP administrator Brok Long said “I’m not going to answer that”, then shut down the meeting to questioning and walked off the stage. Quinn later wrote that the event “was a learning experience. We have no friends there”.
  6. On the same day, June 11, 2018, at the public meeting of Downe Township Committee mayor Bob Campbell said that FEMA officials admit that post-Sandy projects they intend to see completed are still incomplete here in our township. There was no discussion of a timetable for the federally funded projects.
  7. Last month the New Jersey Attorney General filed a lawsuit against Tony Novak and others for failure to make progress on post-Sandy recovery despite the track record of more than ten applications and pre-application proposals to do so.

It is clear that our struggle is with government, not nature. Given the history of what we call “the disaster after the disaster” I am not optimistic about any immediate change in government’s role in our future recovery. We will continue to push for our recovery and long term sustainability at a grass roots level for years to come. We are able to rebuild under the various regional and local recovery plans but we need government permission and cooperation to do so. We also need funding for those aspects of the recovery projects that benefit the public interest rather than just private businesses and homeowners. Virtually all government cooperation is still lacking at this point five and a half years after Sandy.

I anticipate at least two more years will be required to settle existing post-Sandy litigation and appeals and then return to the process of rebuilding. The legal battles are a waste of time and money that only enrich the lawyers on both sides but we don’t think that it is likely that government will act responsibly or come to our aid anytime soon.

Government contact list

This is a list of government contacts that we have engaged or hope to engage with Baysave’s work. We maintain a schedule of regular outgoing communications with all these elected officials but this year (2018) only Senator Booker has responded.


Governor Phil Murphy

Twitter: @GovMurphy

Web form: https://www.nj.gov/governor/contact/all/

Phone: (609) 292-6000

Mail: Office of the Governor
PO Box 001
Trenton, NJ 08625

 


Lieutenant Governor Sheila Oliver

Twitter: @LtGovOliver

Same other contact information as the Governor


NJ Attorney General Gurbir Grewal

Twitter: @GurbirGrewalNJ

Phone: 609-984-5828

Email/Webform: https://www.nj.gov/lps/formmail.htm

Mail: Office of The Attorney General
RJ Hughes Justice Complex
25 Market Street, Box 080
Trenton, NJ 08625-0080


State Senator Jeff Van Drew

Twitter: @jeffvandrew

Phone: (609) 465-0700

Email: SenVanDrew@njleg.org

Mail: School House Office Park

211 S. Main St. Suite 104.

Cape May Court House, NJ 08210


NJ Assemblyman  Bob  Andrzejczak

Twitter: @BobAndrzejczak

Same mail address and phone as Van Drew


NJ Assemblyman Bruce Land

Same mail address and phone as Van Drew


NJDEP Commissioner Catherine McCabe

Twitter: @NJDEPMcCabe

Mail: 401 E. State St.
7th Floor, East Wing
P.O. Box 402
Trenton, NJ 08625-0402

Phone: (609) 292-2885
Fax: (609) 292-7695


New Jersey Senate Majority Leader Steve Sweeney

Twitter: @NJSenatePres


US Senator Cory Booker

Twitter: @CoryBooker

Mail: One Gateway Center
23rd Floor
Newark, NJ 07102

Phone: (202) 224-3224 or 973-639-8700

Fax: 973-639-8723

Email of helpful Aid: Zach_McCue@booker.senate.gov


US Senator Bob Menendez

Twitter: @SenatorMenendez

Mail: One Gateway Center, Suite 1100
Newark, New Jersey 07102

Phone: 973-645-3030
Fax: 973-645-0502

Tim Hillman Aid Direct: 973-645-6640


US Congressional Representative Frank LoBiondo

Twitter: @RepLoBiondo 

Mail: 5914 Main Street Suite 103
Mays Landing, NJ 08330-1746

Fax: 609-625-5071

Phone: (202) 225-6572 or 609- 625-5008

Email: lobiondo@mail.house.gov