Executive Summary

For the past three years, a team of NRDC scientists and policy analysts has conducted an assessment of the environmental protections afforded to the New York-New Jersey Harbor Bight -- the area of the Atlantic coastline that stretches from Cape May, New Jersey, up to New York City, and then across to Montauk, New York; it includes the waters extending into the Atlantic Ocean to the edge of the continental shelf. (A "bight" is a bend in the coast.) We examined the health of the ecosystem on three different levels: water quality, land use, and open space. We undertook this study with a thorough appreciation of the area's environmental riches and an understanding of the factors imperiling them (discussed in Chapter 1). To lay the groundwork, we produced a roster of the powers entrusted with guardianship of the Harbor Bight ecosystem (discussed in Chapter 2). We then went on to evaluate agency effectiveness at the federal and state level: to do so, our inquiry consisted of telephone interviews, independent research, and Freedom of Information Act letters (methodology, findings, and recommendations are found in Chapter 4). Finally, we examined agency effectiveness at the municipal level: to do so, we conducted a comprehensive survey by mail, sent out to 169 municipalities in the Harbor Bight region (methodology, findings, and recommendations are found in Chapter 5).

NRDC reached important conclusions about agency performance in the Harbor Bight. We found a tangled web of bureaucracy that oversees the region's environmental protection; the work of these multiple agencies is sometimes redundant, frequently at cross-purposes, and ultimately fails the environment. Specifically, we found that federal, state, and local agencies are performing relatively well in some areas of water quality protection, but there remains much room for improvement. On the land use front, however, agencies at all levels of government are performing poorly. They issue permits with such lenience that the practice has become a mere formality. Lacking the political will to regulate land use, governments have turned to land acquisition; while such efforts are commendable, they are often hampered by ineffective regulations and poor or nonexistent planning processes that allow uncontrolled market forces to drive up the cost of open space. Therefore, poor land use practices have a direct and negative impact on water quality and open space -- and this is a call for immediate action.

In sum, NRDC's research revealed a landscape that -- in the face of mounting pressures from a growing population and increased development and pollution -- is in critical need of environmental leadership. In the pages that follow, NRDC offers a series of recommendations about how to build or improve the agency infrastructure that is so critically needed at the local, state, and federal levels in order to protect this important arm of the Atlantic coast that we call the New York-New Jersey Harbor Bight.

Background

A Rich and Healthy Ecosystem

The New York-New Jersey Harbor Bight is a region uniquely blessed and uniquely stressed, a dynamic combination of land and sea where people and the environment coexist and collide along the southern coast of New York and the eastern coast of New Jersey. Here, 20 million people live within 50 miles of the shore, making it the most densely populated region of the country.

Once a productive biological hot spot teeming with fish and wildlife, the New York-New Jersey Harbor Bight region has now become a maze of highways, dense development, and sprawling industrial wasteland. Biologically diverse native forests, dunes, and wetlands have been converted into factories, high-rises, and lakes of concrete at a breakneck pace. And yet the Harbor Bight still contains some of the rarest and vital habitat for native plants and breeding, wintering, and migratory populations of animals on the East Coast.

Progress Attracts People, But People Bring Perils

As a result of environmental protection laws put in place over the past 30 years, fish and wildlife are once again thriving in the Harbor Bight. Beaches are the cleanest they have been in decades thanks to hard-earned water quality improvements. In New York Harbor, for example, dissolved oxygen levels (which reflect the general health of the water) have steadily increased since 1970; by 1992, many Clean Water Act goals were reached. Federal, state, and local agencies have made great strides in improving water quality and bringing to life former "dead zones," such as the Gowanus Canal.

A cleaner, healthier coastal ecosystem is a more attractive place to live -- and people are returning to the Harbor Bight for recreation, residence, and liveli-hoods. According to U.S. Census data, in the decade from 1990 to 2000, the Harbor Bight region saw a 7 percent increase in population, from 12,674,348 to 13,587,539.

This renewed interest in the Harbor Bight coastline is taking a toll on the environment: with more people come more pollution and habitat loss. Development, sprawl, and stormwater runoff are among the side effects of the environmental success of this region. Even water quality -- which has been the environmental success story in the region -- is imperiled with pressures from a growing population.

Identifying the Agencies that Protect the Harbor Bight

The Harbor Bight ecosystem includes portions of two states and 169 municipalities, but it has many more borders within this expanse: freshwater and salt water, inner-city neighborhoods and suburban sprawl, coastal preserves and industrial parks. This complex maze of ecological and economic interests requires carefully coordinated decision-making among the federal, state, and local agencies responsible for the Harbor Bight's environmental health.

A critical task in environmental protection is pinpointing the particular regulatory agencies charged with stewardship -- and holding them responsible. NRDC's research into the protectors of the Harbor Bight region revealed a network of interlaced agencies with overlapping and even conflicting responsibilities in environmental protection. Sometimes agency overlap reinforced environmental protection; sometimes it proved redundant; sometimes it was at cross-purposes in achieving environmental protection goals.

Grading the Agencies that Protect the Harbor Bight

For NRDC's assessment of agency performance, see Who's Making the Grade at the end of this document.

Results at the Federal and State Levels

Generally, NRDC found that federal and state agencies in New York and New Jersey do a better job protecting water quality than they do protecting wetlands and other coastal habitats -- but this does not mean that water quality protection is not an issue of concern. For example, continued degradation of green space, including wetlands and coastline, has serious implications for water quality and habitat as well as for the fish and wildlife that depend on it. If these patterns continue unchecked, we risk reversing hard-won water quality improvements.

Regarding land use and open space, NRDC found that, overall, agencies are doing little to check development that is degrading and destroying wetlands and endangered species habitat. With rare exceptions, permits are rubber-stamped without hesitation. And, working in a tangled bureaucratic web, agencies often fail to coordinate efforts, fully implement programs, and keep accurate records.

To evaluate how well water quality is being protected by federal and state agencies in the region, NRDC examined the types and quantities of pollutants discharged into the Harbor Bight. For example, we found that in one year, 35 million pounds of toxics, including zinc, cyanide, chloroform, toluene, and chromium, were legally discharged into sewage treatment plants located in the 169 municipalities covered by this study (many sewage treatment plants have no requirements to measure or limit toxic discharges).

We also identified the facilities that had the most discharge violations. Overall, 30 percent of all permitted facilities in the Harbor Bight had at least one violation for pollution discharges in excess of permitted limits. (See "Clean Water -- Not Here!" above, for a list of the worst polluters in the Harbor Bight.)

Using two EPA databases as sources, NRDC's analysis revealed discrepancies between the states' management approaches that ultimately put public and ecosystem health at risk. For example, even though New York permits more facilities to discharge nutrients than New Jersey, it lags behind New Jersey in setting limits on those discharges; similarly, even though New Jersey permits more facilities to discharge toxics than New York, it lags behind New York in setting limits on those toxics discharges. In sum, inconsistent limits and reporting requirements result in an unreliable system that fails to adequately protect public and ecosystem health.

To evaluate how well federal and state agencies are managing land use issues, NRDC examined wetland protection efforts (using Freedom of Information Act letters and file reviews) and endangered species protection efforts (using piping plovers as a case study). NRDC found that habitat loss continues be a significant problem -- in spite of assurances that regulation of wetlands development is purported to be a coordinated effort among state and federal resource agencies. Response level to our public information requests differed among the agencies, making an even, critical analysis of the status of wetland protection in the Harbor Bight difficult. Certain statistics, however, stood out. For example, from July 1994 through June 1998, a total of 5,428 state wetlands permits were issued by the New Jersey Department of Environmental Protection (NJ DEP); in that same period only 125 permit requests were denied. From 1995 to 1997, NJ DEP handed out 311 CAFRA (coastal development) permits while only 11 CAFRA permits were denied. In general, we found that agencies are issuing too many permits, failing to coordinate efforts, not fully implementing key programs, and failing to keep accurate records.

Two facts emerged clearly: the agencies failed to show they are meeting resource protection goals, and mitigation measures to justify wetland and endangered species habitat destruction are bankrupted by the agencies' failure to track and enforce mitigation implementation.

To evaluate how well federal and state agencies are managing open space issues, NRDC studied funding sources for open space preservation and land acquisition. We found that, however well-intended, these funds may be inadequate and their efficacy threatened in the face of lax land use regulatory programs and poor planning. At both local and state levels, a chronic vacuum in planning persists. Lacking infinite resources, even a well-funded acquisition program cannot make up for lack of planning; it may, in fact, be thwarted by inappropriate zoning. (For example, a commercially zoned wetland will be appraised at a higher value than a wetland covered by a conservation overlay district; the seller will likely demand a correspondingly higher price -- perhaps more than a municipality can afford.)

The good news is that citizens are demanding land preservation efforts, and public officials are responding. For example, New Jersey claims to be the first state in the nation to articulate the goal of acquiring 1 million acres of land, which would achieve permanent preservation of 40 percent of the state's area. New Jersey has progressed towards that goal through significant funding for its DEP-run Green Acres Program, which protects open space through land acquisition. New York acquired critical open space parcels in prior years using bond act funds (which are now depleted) and other monies. New York recently made a similar pledge to protect 1 million acres, but it has yet to ensure an adequate source of funds to follow through with that pledge.

Results at the Local Level

To evaluate how well the Harbor Bight environment is being protected at the local level, NRDC surveyed municipalities on matters of water quality, land use, and open space. Specifically, we inquired about sewage treatment plants, septic systems, polluted stormwater runoff, marinas, public access, open space, habitat, floodplains and flood management, growth and development, planning and management tools, and administration. We sent out a comprehensive survey to 169 New York and New Jersey coastal municipalities; 66 responded. NRDC evaluated the responses and assigned raw scores, which we translated into qualitative grades.

After assessing the data, NRDC found that individual municipalities often performed strongly in some areas but weakly in others. As with state and federal agencies, local governments generally scored higher on water quality protection than on land use issues. Overall, a great deal of water quality information was provided regarding point source pollution control, while questions regarding nonpoint source pollution control were often answered nonspecifically (such as, "stormwater inventory in progress"). NRDC discovered some bold innovations regarding natural resources protection -- including creative programs for stormwater management, land use regulation, open space expansion, endangered species protection, zoning, inventorying, septic system management, and sewage treatment, among others.

NRDC gave points for answers we deemed beneficial to the environment and took away points for answers we deemed harmful. The total raw point score was plotted on a bell curve; each municipality was assigned a qualitative grade, as follows:

• 6 municipalities received a grade of Outstanding
• 21 municipalities received a grade of Good
• 22 municipalities received a grade of Fair
• 17 municipalities received a grade of Needs Improvement

• Allenhurst Borough, New Jersey
• Brick Township, New Jersey
• East Hampton Town, New York
• Islip Town, New York
• Southampton Town, New York
• Southampton Village, New York

In addition to learning about municipalities that offered across-the-board environmental protections, we also discovered a variety of positive programs and infrastructure in some towns, as follows:

• Northfield City has a program to survey and inventory insects, plants, and reptiles at the local park.
• Cape May Point Borough has a program for detecting illegal connections to sewage systems; it detects at least one per year and brings an enforcement action.
• Borough of Avalon received NJ DEP's highest recommendation for its work to protect piping plover and least tern habitat.
• Borough of Bay Head's stormwater management plan includes an Integrated Pest Management Program that is aggressively promoted to homeowners and landscape contractors.
• Brick Township has a program to reduce sewage treatment that has kept sewage flows constant since the program was launched in 1988, despite a growing population; the program has saved the township around $1 million a year in reduced sewage treatment charges.

• Babylon has a land acquisition program that dates to 1960 and has protected 1,045 acres of wetlands.
• Town of East Hampton has one part-time inspector for septic systems; ten enforcement actions were brought between September 1999 and September 2000. In addition, the town has stronger septic setback standards than the county does for areas in the Harbor Protection Overlay District.
• Village of East Hampton regulates activities in wetland and buffer areas such as dumping, dredging, draining, and filling. It adopted a wetlands map that delineates the boundaries and types of all wetlands in the village.
• Islip plans to protect open space through transferable development rights; the town has also used tax abatement to acquire 157 acres of development rights.
• Town of Southampton has had programs to manage and protect piping plovers and least terns for 13 years. The town also performs periodic field surveys in coordination with the New York Natural Heritage Program to assess species protection needs.

• Both Harvey Cedars and Long Beach Township, according to NJ DEP, are home to piping plovers and/or least terns -- but these townships have no programs to protect the birds.

• The Suffolk County Health Department received applications for 5,251 new septic systems between November 1999 and November 2000 and approved 4,633 -- some on substandard lots of one-quarter of an acre or smaller.
• The Patchogue (Suffolk County) sewage treatment plant has received an exemption from the state from secondary treatment for ocean discharge.

Recommendations at the Federal and State Level

Overall, NRDC advocates adopting a regional water quality management approach to incorporate the recommendations below. New York and New Jersey need to work together to achieve the consistency in monitoring, limits, and data collection that will produce accurate pollutant statistics leading to reductions throughout the Harbor Bight. Such a coordinated effort will not happen without leadership. It represents an opportunity for the EPA (possibly through the Harbor Estuary Program), the Interstate Sanitation Commission, or even one of the two states to initiate a systematic, coordinated review and improvement of the pollution control permit system along the lines suggested below and in Chapter 4. Other recommendations include:

• New Jersey and New York consistently need to require limits on and monitoring of pollutant discharges.
• New Jersey must require discharge limits and monitoring for sewage treatment plants receiving toxics discharges.
• New Jersey and New York need to require consistent reporting of pollutant amounts that are measured in units convertible to pounds per year that can allow for direct comparison with the total amount of pollutants entering the waterway.
• The EPA should make sewage treatment plant identification in the Toxics Release Inventory consistent with identification used in the Permit Compliance System database.
• The EPA should take measures to fine-tune the PCS, which -- if improved -- can be an effective right-to-know tool.

NRDC's research demonstrates that the current level of land use permit issuance is unsustainable. If we aim to reduce the number of permits issued, we must ask, why are so many permits granted? Do regulators believe that permitted activities are harmless or can be mitigated? Or do they fear a rash of lawsuits in the wake of permit denials? If the latter, it is imperative that the governors and attorneys general of New York and New Jersey make clear to their regulatory staffs that they will stand behind decisions to deny permits for projects that harm the public's natural resources -- and, if necessary, to defend those denials in court.

Another way to reduce permit issuance is to offer incentives to developers not to apply for permits. NRDC is now crafting and advocating a smart growth tax credit that will encourage developers to plan and construct compact residential and mixed-use developments. These developments would have to meet strict criteria regarding location, density, and proximity to transit; they would also have to meet green building criteria to ensure water efficiency, energy efficiency, use of environmentally progressive materials, and healthy indoor air quality.

• New York, New Jersey, the EPA, the U.S. Army Corps of Engineers (the Corps), and other federal partners must limit the number of permits granted and develop a joint or coordinated wetlands permit and mitigation tracking system.
• New York should strictly limit and begin tracking all coastal development permits.
• New York and New Jersey must not permit building privately owned structures on newly created or replenished dunes and beaches.
• New York should close loopholes that leave valuable freshwater wetland habitats unprotected.
• New York should increase tidal wetland buffer protection in New York City from 150 feet to 300 feet, consistent with the rest of the state.
• Federal and state resource protection agencies must conduct inventories of wetlands, beach strands, and other rapidly dwindling coastal habitats.
• The Corps must implement U.S. Fish and Wildlife Service (USFWS) recommendations on prospective projects, especially those involving plover and other endangered species habitats.
• USFWS should assign critical habitat designations for piping plovers and other endangered species that use beach and dune habitats.
• New York and New Jersey need to provide strong economic incentives to local governments to create and improve existing local planning efforts.

The good news is that governments are widely acknowledging the need for funding for land acquisition; the bad news is that the need greatly outweighs available resources. For example, the expenditures of New Jersey's lavish Garden State Preservation Trust fell short of meeting first-year requests by more than one-half billion dollars.

If government programs are forced to race against private developers, preservation efforts will lose. Limited funds require creative solutions; protecting important parcels of land requires careful planning. Where heavy development pressure collides with irreplaceable resources, government may need to declare a temporary moratorium to allow preservation efforts to catch up. NRDC recommends the following:

• New York should identify an adequate, dedicated revenue stream to fund open space investments.
• New Jersey's Green Acres Program should take advantage of existing acquisition plans when prioritizing acquisition targets.
• Congress should appropriate funds for the Estuary Restoration Act of 2000 (PL 106-457) to implement the Harbor Estuary Program's Comprehensive Conservation and Management Plan -- including the priority acquisition plan (see "The New York-New Jersey Harbor Estuary Program," page 26) and green infrastructure projects, such as the Staten Island Bluebelt.
• Federal, state, and local governments should cooperate to reduce coastal development through land acquisition that includes buyouts of storm-damaged structures.
• New Jersey's and New York's environmental agencies should seek opportunities to leverage infrastructure funds for open space preservation in the event that preservation provides a legitimate pollution prevention or abatement (green infrastructure) service.

Recommendations at the Local Level

While NRDC applauds the trend we see locally -- investing in land acquisition and open space preservation -- we also recommend that municipalities take efforts to the next level. To maximize the benefits of acquisition and preservation, it is essential to improve planning efforts. Planning is one of the weakest elements of municipal guardianship; many municipalities do not even have planners, and the vacuum in leadership in this capacity is taking its toll on the environment. Land acquisition and preservation guided by planning, with careful forethought by local agencies and decision-makers, is the best hope we have for protecting our environment in the long term. Good planning can also reduce land acquisition costs.

NRDC urges municipalities to issue a moratorium on new development while they focus on creating sound and solid plans to guide future land acquisition and open space protection. We strongly recommend that municipalities make greater use of state planning grants to hire in-house planners.

Local governments have many opportunities to enhance their pollution prevention and control efforts, often at little extra cost, sometimes yielding tangible financial benefits. Some of the most important enhancements include:

• improving septic inspection programs and raising the bar on conditions for permitting septics
• initiating basic stormwater management practices such as pet waste ordinances and hoods on catch basins
• using their land use authority to provide a higher level of protection for natural resources such as wetlands, dunes, streams, rivers, and wildlife habitat
• participating in land acquisition efforts

• seek technical assistance from other municipalities
• work with other local governments to address issues of common interest, such as watersheds that cross local boundaries
• work with state and federal agencies to obtain funds for pollution control and prevention

• Municipalities should affirm endangered species protection efforts on local beaches.
• Municipalities should issue moratoria on open space development while improving plans.
• Municipalities that own or otherwise control brownfields should make every attempt to clean and reuse these sites before developing remaining open space.
• Municipalities concerned about their environmental quality and community character should have their own planner on staff.
• When it comes to stormwater management facilities, municipalities should consider low-impact development (LID) strategies, which integrate green space, native landscaping, natural hydrologic functions, and other techniques to generate less runoff from developed land.
• When it comes to creating maintenance plans for existing stormwater basins, municipalities should incorporate vegetation to filter runoff.

• Just as the smallest municipalities need to focus on land use planning, so too should New York City -- which needs to follow the example of cities like Pittsburgh, Cleveland, and Chicago, which coordinate planning efforts to reach goals of economic and environmental sustainability.

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