NJDEP Concedes in David & Goliath Barnegat Bay Dredging Dump Lawsuit But NJDOT Waiting in the Wings

Environment New Jersey

Trenton – In a terse interagency letter, the New Jersey Department of Environment Protection (NJDEP) announced that it was terminating the permits for the construction of a massive 225,000 cubic yard dredge spoil dump adjacent to residential homes, the Barnegat Bay and the Forsythe National Wildlife Refuge in Eagleswood, Ocean County. The action was directly related to a nine year struggle by Eagleswood citizens and a joint lawsuit filed by Environment New Jersey, the New Jersey Conservation Foundation and Eagleswood citizens in late September 2014 to block the construction of the dredge spoil dump because of the violation of the Coastal Area Facility Review Act (CAFRA) and the Coastal Zone Management Act (CZMA).

The legal victory was clouded by recent activity involving bulldozers on the Dock Road site, at the request of NJDOT. To prevent further illegal construction activity, the plaintiffs filed a “notice of appeal” last Friday on Earth Day against the DEP for its failure to prevent the DOT from engaging in such site clearance activities as cutting trees down and slicing crude roads through the site. 

“By filing in both courts against the DEP and DOT we are covering all our bases,” said Bill Potter, the plaintiff’s attorney from the Potter and Dickson law firm.  “The DEP refuses to enforce the law against the DOT and the DOT is taking the law into its own hands, which compels us to file this new round of litigation.”

Plaintiffs have also submitted a “notice of intent to sue” the DOT for engaging in site clearance activities without proper permits at the 26-acre Eaglewood site because the DOT lacks permits to do any construction along the Barnegat Bay at the Eagleswood site.

 “This project stunk to high heaven enough that DEP couldn’t stomach it. But DOT is bringing in the bulldozers and we need to stop this attempt to put up a dump on this slice of paradise along the Barnegat Bay,” said Doug O’Malley, director of Environment New Jersey. “DEP was willing to overlook numerous environmental laws in order to site a massive dump next to a residential neighborhood and a wildlife refuge. DOT won’t find any magic solutions – and they have already started worked on the site.  Once again, we will have to depend on the courts to prevent this environmental disaster.”

The dredging project would remove at least 139,000 cubic yards of spoils from the nearby Westecunk Creek, which would be dumped at the end of Dock Road at a 26-acre site. The DEP proposal was to make the proposed dredge spoil site a Regional Dredge Spoil Facility. This will mean that after the first 200,000 plus cubic yards of dredge spoils are dewatered, they will be excavated and trucked out of the site.  Then fresh dredge spoils from across the region will be dumped at the site to create an ongoing perpetual and industrial operation adjacent to to a wildlife refuge and residential community.

“After 9 long years we are very pleased that the DEP has decided to throw in the towel.  We believe their decision to quit was due to the tremendous strength of our case.  They just had no answers to many of the facts that were on our side,” said Mike Pierro, a plaintiff and Dock Road resident. 

The Confined Disposal Facility is owned by DOT and would hold more than 225,000 cubic yards of dredge spoil material. Hundreds of thousands of cubic yards of dredge spoils are proposed for a site directly across narrow Dock Road from a line of homes, literally on the edge of Barnegat Bay.

A renewed effort by DOT to apply for new coastal zone permits would fall under revised Coastal Zone Management Act (CZMA) rules, which explicitly expanded a loop-hole to try to facilitate more construction of CDF sites like the proposed Dock Road location. The current plaintiffs, were joined by the Surfriders Foundation and Save Barnegat Bay (which also filed an amicus brief on the Dock Rd. case), in February in a lawsuit against the finalized CZMA rules because of this loophole and other capricious aspects of the new regulations.

Among the environmental laws DEP violated is the Coastal Area Facility Review Act (CAFRA) which requires project applicants to submit a detailed Environmental Impact Statement (EIS) as part of their CAFRA permit application.  The DEP claims the project is exempt from CAFRA because the site was briefly used for a small dredging operation in 1983, when the property was privately owned. It was then abandoned and over the last 30 years, it reverted back to a natural area (The previous owner and potential developers were unable to obtain DEP permits for even modest development). The site is surrounded by the Edwin B. Forsythe National Wildlife Refuge and the Barnegat Bay, and was purchased by the DOT in 2006.

Finally, the DEP granted permission to fill 7 acres of freshwater wetlands without requiring detailed consideration of alternative sites, based on the fiction that DEP was permitting the “renovation” of an “existing” CDF, although dredge spoils have not been deposited there for more than 30 years and it has become a de facto appendage of the adjacent wildlife refuge.

CDFs – which resemble open air landfills for dumping and “dewatering” potentially toxic and foul-smelling dredge spoils siphoned from river bottoms – are traditionally sited away from residential locations, for obvious reasons. Hundreds of thousands of cubic yards of dredge spoils are proposed for a site directly across narrow Dock Road from a line of homes, literally on the edge of Barnegat Bay. The final challenged CZMA rule does relax the siting of dredge spoil dumps in coastal communities. Notably, both DEP and DOT say some CDFs are located somewhat close to residences, but can’t identify any as close as here.

“Especially troubling is DEP’s stealth relaxation of siting controls on Confined Disposal Facilities (CDF),” said Bill Potter, the plaintiff’s lead attorney. “A CDF is a kind of open air landfill for dumping frequently toxic dredge spoils. Due to their environmental harms, no CDF should be allowed anywhere near residential or recreational areas, but that is exactly what these new regulations seek to allow.  Before a CDF is permitted anywhere along New Jersey’s coastline, DEP should require strict compliance with the Coastal Area Facility Review Act (CAFRA), including submission of an EIS that discloses the full range of cumulative and secondary impacts, such as those caused by the DEP plan to promote ‘mining’ of dewatered dredge spoils for so-called ‘beneficial reuse.’ The finalized rules failed that test.”

“This is a great victory, but this battle isn’t clearly won yet,” said O’Malley. “This case is much bigger than just Eagleswood, but the DEP Sword of Damocles was hanging over the Dock Road residents. This is a reminder of the importance of protecting CAFRA rules, the weakening of the coastal zone rules and the ignorance that the dredge spoil dump – and homeowners – would be on the front lines of the next storm surge. With the DEP, Earth Day needs to be every day to protect New Jersey’s residents and ecosystems from projects like this. This is still a disaster waiting to happen, and we are honored to join with the Dock Road residents to stop these illegal maneuvers.”