Clean Ocean Action's Letter to Army Corps of Engineers on NJ Reef Permit

Partial List of Participating Organizations on Clean Ocean Action’s Letterhead of this letter ( If you want the whole list send me an email at tfote@jcaa.org) :

January 17, 2004

Lieutenant Colonel Robert J. Ruch

District Engineer, U.S. Army Corps of Engineers Philadelphia District

Wanamaker Building

100 Penn Square East

Philadelphia, Pennsylvania 19107-3390

Ruth Ehinger

Manager, Office of Policy, Planning and Science Department of Environmental Protection 401 E. State St.

PO Box 418

Trenton, NJ 08625-0418

Submitted via FACSIMILLE

Re: Comments on the New Jersey Department of Environmental Protection's, Division of Fish and Wildlife, application (No. CENAP-OP-R 20040011.35-1) for a Department of the Army permit for the deployment of artificial reef materials at 14 artificial reef sites and a new proposed site along the coast of New Jersey

Dear Lieutenant Colonel Ruch and Ms. Ehinger,

Clean Ocean Action submits comments on the New Jersey Department of Environmental Protection's, Division of Fish and Wildlife, application (No. CENAP-OPR-2004001135-1) for a Department of the Army permit for the deployment of artificial reef materials at 14 artificial reef sites and one proposed site along the coast of New Jersey. Clean Ocean Action (COA) has reviewed the Public Notice as well as the application materials, which were provided under our Freedom of Information Act request that was received on January 18, 2005. COA strongly urges the U.S. Army Corps of Engineers (the "Corps”) to deny the permit application based on extensive deficiencies in the application. Artificial reefs can provide habitat for marine life when appropriately sited and managed.

In sum, COA's concerns regarding the permit are as follows.

1. The list of "materials of opportunity" are outdated and do not reflect current New Jersey Department of Environmental Protection Policy

2. The applicant has not adequately shown that the proposed work would not affect listed

species or their critical habitat pursuant to Section 7 of the Endangered Species Act.

3. The application does not adequately address the requirements of the New Jersey Coastal Management Program.

These concerns are discussed in detail below:

1. The list of Materials of Opportunity are outdated and do not reflect New Jersey Department of Environmental Protection's (NJ DEP) Policy Directive 2003-02 or Sept. 2004 NJ "Draft Artificial Reef Management Plan "

a. Obsolete subway cars should be removed from the list of material of opportunity. NJ DEP Commissioner Brad Campbell issued Policy Directive 2003-02, in April 2003, which placed an 8-year moratorium on the placement of subway cars and certain other artificial reef materials. There is no mention of the Directive in either the PN or the permit application. In addition to the moratorium the Directive also

includes:

i. The formation of the Technical Reef Advisory Committee to monitor the 250 subway cats already deployed to determine whether they are appropriate materials of opportunity. Monitoring will include information on asbestos impacts, durability and stability, and fish usage.

ii. The requirement that all future artificial reef materials, including materials of opportunity, MUST:

1. be pollution free

2. be limited to thick, dense materials

3. meet a standard of "retaining a minimum of 90% of original structure integrity for 30 or more years

iii.         The following materials are the only materials that are automatically deemed to meet the above listed standards:

1. Ships/barges

2. Dredged rock/rock

3. Cast concrete forms, pipes, slabs and block

4. Structural steel exceeding 0.25 inches thick

5. Obsolete military vehicles

6. Manufactured reef habitats made of concrete and steel.

b. Curiously, the ACOE application included over 25 pages of subway car related correspondence dated between 2000 and 2001 this information should be deleted from the record as it is irrelevant to the proposed application. Should the ACOE determine these documents are relevant to the application, please provide COA with a detailed justification.

c. Concrete-ballasted tires should to be removed from the list of material of opportunity:

i. DEP discontinued the use of tires as reef material in 1998, "...after DEP discontinued the use of tires in 1998, all county tire reef programs were terminated1

ii. The document dearly states NJ DEP has rejected the appropriateness of tires as Artificial Reef material "Lightweight materials, such as woody fiberglass and tires, are unacceptable and are no longer used to build reefs2."

iii Later in the document, they specifically state that auto tires are not used and have a potential to introduce chemical compounds into the marine environment. `The use of manmade materials, such as auto tires (not used anymore), plastic (not used), concrete debris and ships, to construct reefs opens the potential for introducing chemical compounds into the marine environment”3

d.         Ocean Communications Cables (listed in Attachment B of the permit application) should be removed from the list of material of opportunity. In COA's comments to NJ DEP on the Draft Artificial Reef Plan (submitted 12/06/04), COA questioned the appropriateness of using obsolete telecommunication cables as reef materials as there are several concerns about these materials (100' diameter piles of cable 3' to 10' in profile). Cables clearly do not meet the specific conditions developed by NJ DEP and are therefore not appropriate artificial reef material.

i. A study analyzing failures of ocean communications cable cited commercial fishing operations as the most significant hazard to the cables resulting in damage4. On their own, these cables may be resistant to deterioration, but many of the older ones have already sustained significant damage while in place. These cables can contain contaminants such as copper wire cores, coal-tarred hemp or polyethylene plastic coverings and lead based stabilizers.

ii The New Jersey Plan clearly states that environmentally hazardous material should not be used 5 and plastic materials should not be used6

2. Section 7 of the Endangered Species Act (ESA) requires a NOAA/NMFS consultation:

a. The PN states, "A preliminary review of this application indicates that the proposed work would not affect listed species or their critical habitat pursuant to Section 7 of the Endangered Species Act as amended" A preliminary review is inadequate. Section 7(a)2 of the ESA requires all Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species. It is our understanding that your office has not yet requested a formal consultation with NOAA/NMFS as is required in Section 7 of the ESA. COA requests copies of any documents associated with the NOAA/NMFS consultation.

b. It has been reported that sea turtles become entangled in monofilament line that collects on some of the artificial reef material approved for New Jersey's program. This contradicts the applicant's statement #2.d. in the "Comments to Environmental Impact Check List", "… reefs would have no effects on reptiles". It is important that effects (or lack of} of reefs on marine mammals, birds, and reptiles are adequately investigated and if adverse effects are determined, NOAA/NMFS should recommend permit conditions to eliminate entanglement or other adverse effects.

3. Section 307(c) of the Coastal Zone Management Act requires that applicant's for Federal licenses or permits that conduct an activity affecting land or water uses in a State's coastal zone must provide certification that the activity complies with the State's Coastal Zone Management Program. Additionally, any such certification by the state must reflect current state policies that stipulate requirements contained in the New Jersey Policy Directive 200302. The application does not contain information relating to such state certification; therefore, the application is incomplete.

COA believes the activities proposed in the application do not adequately address the requirements of the New Jersey Coastal Management Program, specifically that construction of artificial reefs is conditionally acceptable provided that at the time of deployment, and at all times after creation, various conditions are met, including- the reef materials shall not pose a threat to the marine environment, shall not be toxic, and shall not be hazardous (NJAC 7:7E-4.21(c)). The use obsolete subway cars are currently under an 8-year moratorium. Once conclusive results of these studies are completed, a determination can be made as to the compliance with this section of the state Coastal Zone Management Program.

As you are aware, 33 C.F.R. 322.5 requires that the District Engineer “review the applicant for provisions for siting, constructing, monitoring, operating maintaining, and managing the proposed artificial reef and shall determine if those provisions are consistent” with various standards, including, in relevant part, “the minimization of environmental risks and risks to personal health and property.” If the applicant's provisions are not consistent with these standards, the District Engineer shall deny the permit.

In conclusion, based on all the above points; the information submitted by the applicant is inconsistent with the applicable standards, insufficient, and in some cases, incorrect; therefore, the permit application should be denied. A written response to these comments is requested

Sincerely,

Cindy Zipf        Jennifer Samson, Ph.D. Nicole Simmons Executive Director Principal ScientistWater Policy Analyst

Cc: open letter

1 New Jersey's Sept 2004 updated "Draft Artificial Reef Management Plan, Page 53, Section 5.4.5

2 New Jersey's Sept 2004 updated "Draft Artificial Reef Management Plan Page 66, 2nd ¶

3 New Jersey's Sept 2004 updated "Draft Artificial Reef Management Plan, Page 80, Section 4,1 st ¶

4 A. J. Munitz. 1966. Analyzing Failures of Ocean Communications Cable. Undersea Technology 7: 45-49

5New Jersey's Sept 2004 updated "Draft Artificial Reef Management Plan, Page 6, Section 7 (C)

6New Jersey's Sept. 2004 updated "Draft Artificial Reef Management Plan, Page 69, Section 6.2.7, 2nd Sentence and Page 81, 5th¶,1st Sentence

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