Tidal Exchange: Fall 2004
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Fall 2004 Issue
Harbor Estuary News Contents
The Public Trust Doctrine
Taking Back What is Rightfully Yours (Click Here)
A Stewardship Database for The Harbor Estuary
Creating a Stronger Network of Coastal Caretakers (Click Here)
The Return of Nature to Raritan Bay
Many Mind Creek and Marquis Creek (Click Here)
Capt. Pete’s Travel Log
Laguna Madre (Click Here)
Peter L. Sattler
Species Profile: Hard Clam (Mercenaria mercenaria) (Click Here)
The Public Trust Doctrine
Taking Back What is Rightfully Yours back to top
The Public Trust Doctrine dates back to the sixth century AD and the Institutes of Emperor Justinian that formed the basis of Roman civil law. The Doctrine assured the citizens of Rome that the waterfront belonged to everyone and to no one. It specifically stated that every citizen had the right to freely “approach the seashore” and that this right superceded the rights of individual property holders.
The Public Trust Doctrine was preserved through the English Magna Charta and redefined under English common law, which limited the King’s ability to sell beachfront to private owners. English common law was later transplanted to the Thirteen Colonies, as was the Public Trust Doctrine.
The Doctrine declares that all of us have an unassailable right to access and use the waterfront for traditional purposes such as navigation, commerce, and fishing. In addition, a growing body of U.S. case law has expanded the definition to assure diverse recreational uses and guarantee of the protection of habitats and natural systems. Under the Public Trust Doctrine, the federal or state government is the trustee responsible for safeguarding the resource on behalf of the public.
It is important to note that the Public Trust Doctrine declares that all tidal waters, waterfront resources, and wetlands be held in trust by the states for the people, even lands that
are privately owned. While the state can lease or sell tidally flowed lands, it can never sell the public’s rights in those lands. The jurisdiction of the Public Trust Doctrine generally extends to all lands below the historic mean high tide line, although recent court decisions in New Jersey have extended public access rights to a portion of the dry sand in order to gain access to the shoreline and enjoy recreational activities, such as sunbathing. (See Matthews v. Bay Head Improvement Ass’n, 95 N.J. 306, 471 A.2d 355 (1984) and Raleigh 4Avenue Beach Ass’n v. Atlantis Beach Club, Inc., et al., 370 N.J. Super. 171 (2004)). Recently the New Jersey Supreme court has agreed to hear two public access cases – the result of which could be a decision that affects New Jersey beach access policy for decades to come.
The Public Trust Doctrine
as a Legal Tool
A specific example of the successful application of the Public Trust Doctrine in the Hudson-Raritan Estuary was a case involving a challenge by the National Association of Home Builders (NAHB) against the New Jersey Department of Environmental Protection in 1999 (Nat’l Ass’n of Home Builders v. NJDEP, 64 F. Supp. 2d (D. NJ 1999)). NJDEP requires that builders of new high-rise luxury apartment buildings along the Hudson River, stretching between the George Washington Bridge and Bayonne, provide permanent public access via a waterfront walkway.
The NAHB claimed that requiring the construction of a walkway violated the developers’ private property rights and constituted a “takings.” NY/NJ Baykeeper and six other environmental organizations intervened on the side of the State, defending the requirement under the Public Trust Doctrine. The judge upheld the walkway requirement, based in part on the Public Trust Doctrine and the fact that because the public has the right to be there, nothing was “taken” from the developers.
Building upon a landmark beach access case decided by the New Jersey Supreme Court in 1984 (Matthews v. Bay Head Improvement Ass’n), private citizens and homeowner associations along the Jersey Shore continue to bring public access cases based on the Public Trust Doctrine. In fact, the New Jersey Supreme Court recently granted certification to hear two public access cases. Stay tuned for new developments in New Jersey public access law that could have ramifications nationally.
The Public Trust Doctrine as an Organizing Tool
NY/NJ Baykeeper, in partnership with other environmental organizations, works to educate the public about their rights under the Public Trust Doctrine. This past summer Baykeeper, Hackensack Riverkeeper and the Rutgers Environmental Law Clinic, forming alliances with Passaic River waterfront communities, neighborhoods and citizens, launched the Passaic River Patrol.
The Patrol’s mission is to educate the community that every citizen who lives near the River has an unalienable right to clean water in which to swim, fish and boat. This means that every citizen must be able to walk along its banks, to see parks and greenways established along the River, and to see wildlife and birds restored to its ecosystem. The Patrol has led eleven boat trips on the Lower Passaic River so far, with more scheduled.
Guests have included State and Federal trustees; Federal, State, County and local officials; responsible parties representatives; high school students; and local advocates.
The Public Trust Doctrine survives today as one of the most important and far-reaching doctrines of American property law. Under the Public Trust Doctrine, shorelands, tidelands, tidewaters, navigable waters, as well as the plant and animal life within them, are accorded special treatment under State and Federal law. These lands, waters and wildlife are owned by the people, but held in trust by the states for the benefit of the public.
For more information on the Public Trust Doctrine and the Passaic River Patrol, please contact Debbie Mans at 732-888-9870 or Debbie@nynjbaykeeper.org or visit www.nynjbaykeeper.org.
Debbie Mans is NY/NJ Baykeeper’s Policy Director.
A Stewardship Database for The Harbor Estuary
Creating a Stronger Network of Coastal Caretakers back to top
“It is our collective and individual responsibility to protect and nurture the global environment in which we all live.”
- Dalai Lama
An environmental steward is any person who takes action to protect or restore global, regional, and local ecosystems. Stewardship organizations are those entities that work together to guarantee that future generations will be able to enjoy healthy ecosystems. For the Harbor Estuary, stewardship is a means for increasing awareness of conservation issues, acting to protect and restore the ecosystem, and enhancing the overall natural experience for residents of the metropolitan area.
Building on the April 2003 release of A Steward’s Guide to the Estuary, a summary of the major stewardship activities and environmental focus areas in the Estuary, HEP’s Citizens Advisory Committee (CAC) initiated the development of an online database that would help stewards connect with others doing similar work. The resulting the Stewardship Database will outline the education, advocacy, and hands-on activities of many environmental organizations throughout the region. When it goes online this fall, the Stewardship Database will allow for an exchange of information between individuals and groups interested in furthering conservation and restoration of the Harbor Estuary complex.
The Stewardship Database represents a comprehensive outreach effort to connect environmental organizations within the region while encouraging stewards to increase their involvement with HEP’s initiatives. From the beginning, the CAC realized that there was a need within the Harbor region for a baseline of data and information on stewardship activities. The CAC envisioned that the creation of a working network would assist organizations in achieving a more synergistic approach to information exchange and allow for the transfer of information while helping local groups achieve improved conservation results.
In order to develop the Stewardship Database, a conceptual model of the online version was created in a format that would best summarize the programs and capabilities of environmental organizations in the Estuary. From this model, a questionnaire was developed and surveys were distributed to over three-hundred organizations. Responses were then compiled in a spreadsheet that captured the information for presentation in the Stewardship Database. An online, searchable version of the Stewardship Database is now in the testing phase.
Initial results from the collected surveys indicated that organizations participate in a variety of stewardship activities. The programs initiated by these groups often include projects that focus on issues such as education, advocacy, and hands-on action.
Stewards’ educational activities help people understand the value of natural habitat and offer programs 3that allow teachers and the general public to interact through a variety of learning environments. Some organizations focus their efforts on advocacy activities designed to empower local residents to positively affect the environmental decision making process. Stewardship groups also engage in hands-on activities that help people directly improve their local environments.
The Stewardship Database will serve as an online resource for all of these environmental groups to exchange information. On the database homepage, users will search for programs and activities in three broad categories: education, advocacy, or hand-on action (Figure A). Users will also be able to select stewardship groups by the counties they work in to gain a perspective on what is happening in their local ecosystem. Volunteer opportunities and internships are another categories by which users will be able to find stewardship organizations.
Search results will reveal a list of organizations that represent the preferences selected by the user. From this point, links to specific stewardship groups will provide detailed information about their activities and programs (Figure B). Information included in that webpage will include topics such as:
• educational programs
• advocacy initiatives
• hands-on action
• mission statement
• contact information
• geographic focus
• waterfront access sites
• teachers’ resources
The Stewardship Database is currently in its final stages of development. Upon completion, the groups that initially responded to the survey will be asked to review their information for accuracy. Following confirmation that all information is correct, the database will go online and will be accessible to everyone. Future efforts will focus on adding more stewardship organizations to the database.
Facilitating the sharing of information will help stewardship organizations to better accomplish their goals and in the long run will increase the protection and restoration of the Harbor Estuary’s valuable resources. As the Harbor & Estuary Program partners work toward new targets and goals for the Estuary, stewardship groups are increasingly recognized for their essential role in achieving results. The Stewardship Database is the first step in the process of bringing together a network of estuary stewards empowered with the knowledge needed to advance resource protection at the most local of levels.
If you are interested in adding your organization to the database please contact
Look for the upcoming release of the Stewardship Database at www.harborestuary.org.
Joel Banslaben is an Associate for the Harbor & Estuary Program and has worked on conservation and management issues in the region for the past decade at organizations that include MTA – New York City Transit, Peconic Baykeeper, and Battelle Memorial Institute.
The Return of Nature to Raritan Bay
Many Mind Creek and Marquis Creek back to top
The Bayshore region (comprising Raritan Bay and Sandy Hook Bay) is located less than an hour by ferry from the New York metropolitan area. Yet, in spite of its proximity to the largest urbanized piece of coast in the world, those who visit the bay - and its compact communities of Aberdeen, Matawan, Keyport, Hazlet, Union Beach, Port Monmouth, Atlantic Highlands, and Highlands - are afforded the opportunity to see the many different estuarine habitats that encompass tidal wetlands, freshwater swamps, upland forests, and a lengthy sandy shoreline.
Many of these habitat areas are identified by the Harbor & Estuary Program (HEP) as priorities for acquisition and restoration. HEP priority acquisition sites along the Bayshore include: Leonardo (RB-2), East Creek (RB-6) and Flat Creek (RB-7) in Middletown; Whale Creek (RB-11) in Oldbridge; and Cheesequake Marsh (RB-13) in Edison and South Amboy. Unfortunately, many Bayshore sites are imminently threatened with development. Current “endangered” HEP priority acquisition sites on the Bayshore include Many Mind Creek in Atlantic Highlands (RB-17), and Marquis Creek in Old Bridge Township (RB-12).
Many Mind Creek is a largely unbuilt waterfront containing saltwater wetlands, coastal dunes, and a wide sandy beach. It is threatened with proposals for dense townhouses, new commercial development, and expanded parking lots located right on the shores of Sandy Hook Bay. Looming development would degrade both sides of the Creek
and block important public access to the Bay.
Like most creek mouths up and down the Bayshore, Many Mind Creek, is an important fish spawning area and a feeding spot for two State of New Jersey endangered species, the least tern and black skimmer. Throughout the summer months, small flocks of black skimmer can be seen flying near the mouth of Many Mind Creek, along the bay, and even into the Navesink River. According to the New Jersey Division of Fish and Wildlife, Sandy Hook Bay supports one of the Jersey Shore’s primary nesting colonies of this species.
The petite least tern, the smallest of the North American terns at around 9 inches, arrives in the region around May and can be seen flying swiftly near the shoreline looking for food in the form of killifish, silversides, and shrimp. In addition to Many Mind Creek, a favorite place to observe this species is Conaskonk Point in Union Beach (HEP priority acquisition
Marquis Creek has been degraded by decades of illegal dumping of fill and solid waste by residents and businesses. In 1994, New Jersey Audubon Society identified this site as a feeding area for herons, ducks, shorebirds, and spring migratory birds such as the red knot, endangered in the State of NJ. Marquis Creek is also an important spawning area for horseshoe crabs. The site has the potential to provide much needed public recreation including fishing, crabbing, birding, and walking.
Even as many species are making a comeback, increasing development pressures, such as those at Marquis Creek and Many Mind Creek, threaten their long-term survival by contributing to aquatic pollution. One of the most critical risks in the Bayshore region is polluted stormwater runoff, which enters local waterways causing brown tides, shading and contamination, while leaving litter and debris on beaches and in salt marshes.
To help educate people about the dangers of polluted stormwater, the all-volunteer Bayshore Regional Watershed Council (BRWC) is marking stormdrains in the Raritan Bay watershed region with all-weather plastic markers that declare “NO DUMPING – DRAINS TO CREEK.” Environmental literature will also be distributed to area residents and businesses about ways to control nonpoint pollution.
In 2003, the BRWC received funds from the Harbor & Estuary Program to mark approximately 300 stormdrains for Flat Creek in Holmdel and Hazlet Townships. In 2004, we received additional funds from HEP to mark stormdrains for Gravelly Brook and Many Mind Creek. The BRWC will partner with environmental commission members, scout groups, and school children in Aberdeen and Atlantic Highlands to label approximately 400 stormdrains and distribute educational door hangers to local property owners.
The purpose of the BRWC is to preserve and protect Raritan and Sandy Hook bays. This environmental education project will help to increase public awareness for local waterways that people notice virtually everyday, but are unaware of their important role in the health of the New York-New Jersey Harbor Estuary.
Joe Reynolds is co-chair of
the Bayshore Regional
Watershed Council. Born and
raised along the Jersey Shore, he currently resides in Atlantic Highlands. Since 2000, the BRWC has been working to improve the physical environment in the Bayshore region of Middlesex and Monmouth counties. The BRWC is made up of volunteers, including citizens, scientists, environmental commissioners, and municipal officials from a variety of Bayshore communities.
Capt. Pete’s Travel Log
Laguna Madre back to top
Peter L. Sattler
The fall meeting of the Association of National Estuary Programs brought me to Corpus Christi, Texas in October. The meeting was hosted by the Coastal Bend Bays and Estuaries Program. The 2 _ day meeting was conducted with two concurrent tracks: science / program management and education and outreach. This annual meeting, which is hosted by a different NEP each fall, provides an opportunity to interact with other programs and exchange ideas.
This area of the country is a prime South Texas Mecca for birders, beach goers and fishermen. HEP Director, Bob Nyman and myself took a vacation day and arrived early to catch the elusive redfish.
Leaving before dawn, our local fishing guide drove us to Padre Island National Seashore and launched his custom bay boat at Bird Island. Traveling south into Laguna Madre, we saw many different types of shore birds, fishing camps with dubious sanitation systems, derelict navigational aides and not another soul.
The wind was relentless; the sun grueling; but we prevailed! Using a custom rig that incorporated a 36” leader, a treble hook, a float with internal beads and live shrimp, we were successful in catching our prime target, as well as a variety of other species: catfish, black drum, ladyfish, speckled trout and piggy perch.
We did catch legal size redfish (minimum 20”) and speckled trout (minimum 14”), but we decided to practice catch and release. When I’m at home, I only keep enough for the dinner table. On the road, I release the fish so that they can grow and be caught on another trip. Maybe next time I’ll pack a Hibachi and work on a new recipe.
Peter L. Sattler is Principal Environmental Planner with the Interstate Environmental Commission.
Species Profile: Hard Clam (Mercenaria mercenaria) back to top
The hard clam, Mercenaria mercenaria, also known as the northern quahog, has a thick off-white to fawn colored shell with a violet border, short siphons, and a large muscular plow-shaped foot. It can be found along the eastern and gulf coasts of the United States, from the Gulf of St. Lawrence to Florida and Texas, but is most abundant from Massachusetts to Virginia. The hard clam is the most widely distributed clam species in the United States.
Hard clams live in the subtidal regions of bays and estuaries that are 15 meters or less in depth. Adult clams burrow into the firm, sandy substrate and remain in nearly the same location throughout their lifetime. They tolerate a wide range of water quality and can therefore survive in very polluted habitats. Hard clams grow rapidly in favorable water conditions, but are able to live in temperatures from below freezing to 35 C (optimum temperature about 23 C), and salinities from 10 ppt to 35 ppt (optimal range of 23 to 32 ppt).
Reproduction begins around 2–3 years of age when the shell length reaches 32-38mm. Size, not age, is the determining factor in sexual maturity. The average female releases 2 million eggs during spawning and the eggs may travel 2-25 km from where they are released. Larval hard clams are one of the most abundant types of microorganisms found in estuaries.
Like all bivalves, hard clams feed by using a siphon to filter plankton from moving water carried by currents. It takes roughly three years for a hard clam to grow to the minimum legal size for harvesting. There are four main commercial sizes: seed clams (<50 mm), littlenecks (50-60 mm), cherrystones (66-79 mm) and chowders (>80mm). Mortality is high in larval and seed clams until the shell becomes thick enough to resist predators such as birds, snails, crabs, seastars and fish. Adults can reach a maximum length of 15 cm in about 20 years.
The hard clam is a valued economic and natural resource in the NY-NJ Harbor Estuary. Hard clam beds can be found in the Navesink and Shrewsbury Rivers, Raritan and Sandy Hook Bays, and Great Kills Harbor. Commercial shellfishing is conducted in all of these waters, although direct harvesting is allowed only in a portion of the Navesink and Shrewsbury Rivers on a seasonal basis. Since most of the Harbor Estuary waters are not certified for direct harvest, the hard clams must be purified before reaching consumers. Purification occurs through relay (transplanting to cleaner, certified waters) and depuration (flushing with clean water). In New York waters of the Harbor, shellfishing is currently suspended due to the continued presence of Quahog Parasite Unknown (QPX), a hard clam parasitic disease. Although QPX is not a threat to human health, transplanting diseased clams to certified waters may spread the parasite to uninfected populations.
Jenny McCormick is the Coastal Communities Agent and the NJ Sea Grant Program Associate for the NJ Sea Grant College Extension Program.