Posted on August 8, 2018
The public trust doctrine has protected tidal waters for the benefit of the people since Roman times. In the United States, we inherited the responsibility of respecting the public trust from the King of England. The State of New Jersey has promoted the public trust doctrine and claimed ownership of land washed by the tides. Public access to tidal waters is a high goal. A human perspective is the fabric of the public trust. Humans value water and the public trust doctrine honors that human value.
The Army Corps of Engineers and the state Department of Environmental Protection, partners in the beach replenishment project, have ignored the public trust doctrine in their current insensitive and destructive dredging. When dredging first fouled the ocean beaches in Ortley Beach and Lavallette in mid-July by discharging wood, peat and darkened water onto beaches where thousands swim, Army Corps and DEP officials said that peat discharges are common in dredging for replenishment. The DEP project manager told me to “get used to it.” Both agencies lightly dismissed the dirtied water as just a nuisance.
Since the initial discharge, another major incident with larger pieces of wood and darkened and discolored waters occurred later in July and on several subsequent occasions. Sadly, the ocean was warm and beautifully clean prior to these discharges. Because peat is “common,” the DEP official correctly said to “get used to it” since the discharges would continue. Having failed to consider the likelihood of encountering peat in its required environmental studies, the agencies did not evaluate the impacts on the public trust, particularly in the summer months when the public flocks to the popular Jersey Shore.
Both agencies are now at a loss to reduce the harm to the public. Both agencies do not respond to numerous telephone calls and emails urging efforts to avoid this continuing harm. The project proceeds unabated and the remains of the ancient maritime forest are strewn in the water and on beaches in disregard of the Clean Water Act. Unfortunately, the partnership between these agencies has blinders against identifying negative impacts and a lack of honesty in evaluating and implementing the replenishment project to avoid harm to the public trust.
The useless destruction of the dune in Midway Beach is another example of the unnecessary harm inflicted on our precious coastal resources. Although the Army Corps claims that the contractor will replace the dune, a mature, well-vegetated dune cannot easily be replaced. The DEP has stringent regulations to protect dunes and for good reason. Yet the Midway Beach dune was needlessly excavated.
The National Environmental Policy Act is embedded in our processes since 1969 and requires government to evaluate and reduce the negative impacts of federal projects. The Clean Water Act has prohibited discharges into our waters since 1972. Under the guise of an emergency and by fear mongering, the Corps and the DEP have violated the public trust and our essential environmental protection laws. It is this type of conduct that causes citizens to distrust government. Those who did not identify that peat could sully our waters in the summer, who did not consider the harm to the public and who continued the harm should “get used to” being distrusted.
Meaningful efforts to mitigate the ongoing harm are immediately necessary. The public should not have to get used to dirty water.
Source: app
