Dredge Spoil Dump by the Bay? Decade Plus Legal Fight in Court Notches Win Against NJDOT Attempt To Construct Dump along the Barnegat Bay

Eagleswood, Ocean County – Earlier this month, the Appellate Division of the Superior Court of New Jersey overturned a permit that authorized the New Jersey Department of Transportation (DOT) to construct a Confined Disposal Facility (CDF) at the end of Dock Road in Eagleswood Township. A group of concerned neighbors joined with environmental advocates including Environment New Jersey, New Jersey Conservation Foundation and Save Barnegat Bay to challenge the actions of two state agencies, the New Jersey Department of Environmental Protection (DEP) for issuing the permit and the New Jersey Department of Transportation (NJDOT) for constructing the behemoth of a structure on top of a freshwater wetland. After nineteen years of navigating the bureaucracy of the state and the court system, the group finally won and the decision reads that, “Having considered this matter a second time, we reverse the issuance of the General Permit 1. As a matter of law, we conclude the DEP and the DOT have misrepresented the criteria within NJAC 7:7A-7.1(a) and misapplied them to the facts.”

“The DEP has the responsibility to act fairly and even-handedly.  Instead, the DEP distorted the clear language of its own regulation to allow a sister agency to damage the environment with impunity,” said Michele Donato, Esq, representing the homeowners, Environment New Jersey and New Jersey Conservation Foundation.

The CDF structure is intended for the containment and storage of dredged sediment materials and was built during the term of the legal battle and is today filled with materials from Westecunk Creek and Parker’s Run. It sits in an idyllic setting, in a quiet, residential neighborhood at the end of Dock Road that leads to the sparkling waters of Barnegat Bay. The spot is surrounded by the Edwin Forsythe National Wildlife Refuge and the sounds of birds fills the air. An osprey nest sits near the site and hatchlings can be seen popping their heads up as their parents bring food back to the nest.

“This is a slice of paradise along the Barnegat Bay. Yet, for close to two decades, NJDOT has acted like these wetlands adjoining the Forsythe Wildlife Refuge and residential homes were an industrial site and NJDEP permitting ignored clear statutes. In an age of sea-level rise, this is the exact wrong place to store dredge spoils and the active construction by NJDOT has created an ecological scar. This month’s court victory is a first step to try to undue these environmental harms,” said Doug O’Malley, Director of Environment New Jersey.

The CDF is adjacent to homes and on top of marshes and surrounded on the south and west by the wildlife refuge. Under the General Permit issued by the NJDEP, the transportation agency, which conducts maintenance dredging for inland waterways, does not have to address harm to the environment and is not required to look at alternatives.

“It’s painful that it took almost 20 years to get the two agencies to follow their own rules. This blatant disregard of the rules is a waste of time and taxpayer dollars. The burden shouldn’t fall on the public. Save Barnegat Bay has never opposed maintenance dredging for boating in the bay. However, we have been advocating for a Barnegat Bay Sediment Management Plan for fifteen years. While the DOT is finally developing a coastal plan, we need a separate more detailed plan with community engagement specifically for Barnegat Bay. The sensitive ecological features of Barnegat Bay, the need for marsh restoration, the decades of scientific research and the high-level of community engagement present the perfect opportunity to do far more good than then the archaic method of a Confined Disposal Facility (CDF). The blatant disregard for the rules only exacerbates the situation,” said Britta Forsberg, Executive Director of Save Barnegat Bay.

The groups and the residents focused on addressing the management of dredge sediment materials in their neighborhood and on the sensitive environmental marsh habitats that are crucial to the local ecosystem. After a nineteen-year legal battle, the courts ruled last week that the DEP made legal and factual mistakes.

“This is a really important victory for the local and regional environment and for the people who are invested in the preservation of our precious natural resources around the Barnegat Bay.  We are thrilled that the Court accurately assessed the law and revoked the permit.  It is now up to the Department of Environmental Protection to take the next steps to correct or remediate the unpermitted CDF that should not have been constructed without the proper permits,” said Dan Greenhouse, Senior Staff Attorney for Eastern Environmental Law Clinic, who represented Save Barnegat Bay.

The primary concerns in the appeal include the potential environmental impact of dredge sediment disposal on the marshlands, which serve as vital habitats for wildlife and act as natural buffers against flooding. They argue that the current practices could lead to long-term ecological damage and advocated for more sustainable and scientifically informed management strategies to protect wetlands and the habitat for threatened and endangered species.

“I am very grateful that the court took the time to consider some of the complicated issues in this case and reversed the permit authorized by DEP. We were fortunate to be supported by an incredible attorney and experts, along with representatives from NJ environmental organizations whose lives are dedicated to making the world a better place. Their integrity, passion, and dedication to the environment along with their knowledge, experience and expertise were able to overcome the deference to officials whose opinions were found to “misrepresent the criteria within the NJAC 7:7A-7.1(a) (i.e. the FWW regulations) and misapplied them to the facts”. That this effort took almost 2 decades, and that the legal process was unable to spare the environment over that time until the court’s opinion could prevail, shows how much work is left to be done,” said Martha Steinberg, a long-time Dock Road resident and appellant.

The groups and the residents are calling for greater transparency and involvement in the decision-making process related to sediment management. They emphasize the need for state agencies to collaborate closely with local communities and environmental experts to develop plans that protect both human health and the environment. By uniting their voices, the neighbors and environmental advocates aim to ensure that the management of dredge sediments is handled responsibly, preserving the integrity of Eagleswood Township’s natural resources for future generations.

“On May 10, 2024, the DEP and Governor Murphy announced a suite of reforms to address coastal resilience and coastal flooding.  In those reforms they recommend using dredged material to raise the height of the meadows with thin layer placement, replace lost island habitat and rebuild estuary coastlines. We suggested all of this 15 years ago but they allowed the DOT to build a dump right across the road from residential homes on 26 bayfront acres and in the process destroy 7 acres of wetlands.  It doesn’t make sense.  I’m very happy about our recent court victory and would like to thank all of the people that worked hard in that effort,” said Mike Pierro, a Dock Road neighbor and appellant.

NJDOT and NJDEP both authored a study in 2021 on beneficial reuse of dredge spoils that looks at adaptive reuse within coastal ecosystems – with a direct focus on resilience and habitat enhancement – that proved to be successful at Fortescue along the Delaware Bayshore. The court decision ideally would lead to re-examination of state policy on dredge spoils – and lead to a resolution that is ecologically beneficial for a site that borders Barnegat Bay and a National Wildlife Refuge.

“The best and easiest way to resolve this situation would be to conduct an ecological restoration for both tidal and freshwater wetlands on the site, to include some unique habitat components that could develop into nesting areas for increasing rare species such as diamondback terrapins and colonial waterbirds such as terns or herons, and to annex the property to Forsythe National Wildlife Refuge,” said Emile DeVito, Ph.D., Manager of Science and Stewardship at NJ Conservation Foundation.

####