Opinion: The New DEP Policy — Making a Battlefield Out of Shellfish Gardens?

Michael Catania | July 16, 2010 | Opinion
The standoff between the NJ Department of Environmental Protection and the NY/NJ Baykeeper is 'a conflict that did not need to happen.'

As a former in-house counsel and deputy commissioner of the NJDEP, I know painfully well how difficult it can be to manage many of the complex issues that fall within the agency’s purview. I also know that these management issues are even more challenging when a crisis strikes, and I have the scars to evidence my professional involvement with almost every form of scary environmental contamination. I have spent months and even years of my life trying to resolve dioxin contamination in Newark, seeking ways to remove radon-contaminated soil from Montclair….

As a result, I typically find myself more than a little sympathetic with current DEP managers, and quite inclined to give them the benefit of the doubt when they are doing their best to deal with the latest crisis.

The current crisis concerns a directive from DEP to the NY/NJ Baykeeper to cease and desist in their efforts to re-establish oyster beds in portions of Raritan Bay and nearby Atlantic Ocean, waters that are deemed unsafe for commercial shellfishing, as are some 20 percent of our coastal waters. These closed areas are due to a combination of industrial discharges, treated sewage effluent from public authorities, and plenty of non-point pollution from a variety of human and animal sources.

Commissioner Bob Martin and his staff at DEP seem to sincerely believe that these so-called shellfish gardening programs are a threat to the state’s $790 million per year commercial shellfish industry, and that it is absolutely necessary to protect the public from the possibility that the research oysters will be poached and end up being served to consumers, thereby threatening the public health and jeopardizing the reputation of the shellfish industry. Further, DEP maintains that continued operation of these shellfish gardens will make it even more difficult for the state to comply with FDA regulations, especially since that agency has already found the state regulatory program to be deficient in several respects.

And so DEP recently announced a new shellfish policy that would prohibit shellfish gardening in closed waters.

Baykeeper, for its part, maintains that shellfish gardening focus much-needed public attention on the need for society to take a number of actions to clean up our coastal waters, that oysters were once and should again be a keystone species in the marine habitat and that oysters, as natural filters, are part of the solution to contaminated waters, rather than the problem. Baykeeper also notes that the restoration of traditional oyster beds is a legitimate public goal for the Hudson-Raritan Estuary and that numerous public agencies have supported re-establishing these reefs in the near future.

In the middle of this emerging showdown steps Sen. Gerald Cardinale (R-Bergen), who introduces legislation to authorize shellfish gardening. That legislation was considered by the Senate Energy and Environment Committee yesterday in Trenton. Both Democrats and Republicans on the committee seemed inclined to release the bill, but agreed to hold it after hearing the agency would try to work things out with Baykeeper. Chairman Robert Smith (D-Middlesex) even went as far as to advise DEP that this was a conflict that did not need to happen, admonishing them to solve this problem before he and his committee did. Less than three hours later, however, instead of taking advantage of this grace period, DEP decide to escalate the conflict into full-blown warfare by issuing a press release and delivering a Notice of Violation to Baykeeper, giving the organization 24 hours to notify DEP that they would remove the oysters from the newly established reefs, or face substantial stiff penalties. As a result, we are now at DEFCON 4, and the missiles are about to be launched from both sides, with lots of collateral damage likely.

Now don’t get me wrong. I really do appreciate the fact that Commissioner Martin is clearly trying to err on the side of God and the angels, and my heart goes out to him and his efforts to do more under very difficult circumstances with substantially less resources than I enjoyed during my tenure. But with all the unavoidable crises he already has to deal with, I cannot figure out why he needs to escalate this issue to a crisis by launching what can only be perceived as a pre-emptive strike against an environmental group and the schoolchildren who participate in their shellfish gardening programs.

And so, from the admitted safety of my perspective out of the line of fire, I would like to offer some unsolicited advice to our new commissioner, in the hopes that he will find a way to de-escalate this situation and put the missiles back into their silos.

Shellfish gardens are not the problem here: the problem really is much more complex. We still have a ways to go to get public and private dischargers into compliance with their current permits, and to find ways to improve wastewater treatment and minimize non-point source pollution. We should be focusing our collective efforts on making our waters cleaner. But we also have an additional problem with a lack of resources to provide both DEP and our Department of Health with funds to adequately patrol these areas, to replace vessels that are too old and small for this herculean task, and to pay for necessary sampling. As far as I can tell, closing down the shellfish gardens won’t solve a single one of the deficiencies in the state regulatory program noted by the FDA.

Prosecuting environmental groups won’t help, either, nor will calling these folks uncooperative and treating them like criminals, especially when others believe that they have bent over backwards to work things out. Trust me, you really do not want to be the first DEP Commissioner to train your firepower on an environmental group with whom you have a policy difference. The only thing this will accomplish will be to force them to do everything in their power to draw attention to violations of existing permits and prepare to file citizen lawsuits against DEP for failure to take enforcement action against those who are responsible for these waters being closed in the first place.

I also suspect that depriving local school children of the opportunities to participate in shellfish gardening and to learn more about how to become better stewards of our coastal waters will also not play so well.

Fortunately, none of this has to occur. There are a number of things that ought to be explored in order to make sure that no oyster from the research reefs is consumed by an unsuspecting public. As they approach marketable size, these oysters could be dyed, notched or otherwise marked so that they can easily be distinguished. And the existing security measures — i.e., the 150-pound cages that contain the research oysters — could be supplemented with an alarm system or some other device that would make it obvious if poaching is even attempted.

Next, there is a real opportunity here for what is commonly referred to as a “teachable moment.” Now that the commissioner’s bold actions have everyone’s attention, why not use this moment, in cooperation with Baykeeper, to explain to all of us how we can each reduce non-point source pollution and help to clean up our coastal waters? Perhaps the legislature and the governor could even be persuaded to make a modest investment in strengthening our commercial shellfish regulatory program to protect that $790 million per year industry.

This could also be an excellent opportunity to seek the advice of the new DEP Science Advisory Committee, established only recently by the Commissioner. This distinguished group might offer some real insight into both the actual extent of the public health problem posed by shellfish gardening programs, as well as suggestions that no one else has yet offered.

Finally, DEP can and should get its own house in order, as Commissioner Martin, to his credit, has vowed to do. With all due respect, however, the commissioner would do well to refrain from taking the Baykeepers of this state to task and threatening them with enforcement action until after DEP has successfully brought all of the public and private dischargers in these waters into full compliance with their permits.