water commission
The Third River, in the Alonzo F. Bonsal Wildlife Preserve.
Adam Anik for Montclair Local

By Jaimie Julia Winters

The North Jersey District Water Supply Commission (NJDWSC), which cleared over 70 trees at Alfonzo F. Bonsal Preserve in July in maintenance of its waterline, has been issued a notice of violation by the Department of Environmental Protection, a spokesperson for the DEP confirmed last week.

On Tuesday however, Water Commission Executive Director Tim Eustace said he was unaware of a notice of violation from the DEP in regards to the maintenance of the water supply at Bonsal.

“This vital water supply has been routinely maintained for over 100 years supplying water to nearly three million residents,” Eustace wrote in an email. “We have never, to my knowledge, required a permit to make sure that this vital resource is protected and maintained.”

A DEP inspector visited the site on Aug. 9 after receiving three reports of the water company clearing trees without a permit and the spraying of herbicides.
The inspector’s report stated 6,900 square feet of wetlands had been disturbed by the project.

Bonsal is home to freshwater wetlands with the Third River running through it. Due to the preserve’s Green Acres funding, its wildlife habitat and protected wetlands status, the DEP and the New Jersey Fish and Wildlife Department should have been notified of the project by the water commission, contend the Friends of the Bonsal Preserve, a citizen’s group which has overseen the property since the 1970s.

The state regulates and requires permits for the “destruction of plant life which would alter the character of a freshwater wetland, including killing vegetation by applying herbicides or by other means, the physical removal of wetland vegetation, and/or the cutting of trees” in freshwater wetlands areas.

Eighty percent of vegetation cleared was within a “transition” area. About 20 percent of the removal occurred in the Freshwater Wetlands Mapping area, according to a report issued after the inspection.

A transition area is defined as uplands adjacent to the freshwater wetlands, and it is considered an integral component of the wetlands. The removal of vegetation and trees in a transition area that relate to serviceable structures and features are not regulated, but requires a transition area waiver. Vegetative maintenance activities within a riparian zone are authorized via permit-by-rule.

“Since riparian zone vegetation is so important for the health of the regulated water, the removal of this vegetation is discouraged by the Flood Hazard Area Control Act [FHACA] Rules. Consequently, all disturbances to vegetation, soil excavation and construction within riparian zones are considered regulated activities and require approval from the department. Utility lines often impact riparian zones. Therefore, they are regulated activities, requiring permits for their maintenance and construction,” states the FHACA technical manual.

According to DEP spokesperson Caryn Shinske, the water commission needs to submit for a land use permit for all maintenance work.

Why tree clearing?
Two years ago, the water company directed a $550,940 tree-cutting project throughout its miles-long system. A May 2015 report commissioned by the water commission, cited tree root damage to its aqueduct systems as most concerning, but other issues included access to the system, liability due to falling trees or limbs and wildfires and security issues as the trees could conceal dangerous activities.

The Friends of the Preserve said the loss of the trees and other flora along the banks of the Third River has caused severe flooding to the property. Because the commission’s easement hugs the river, many trees that were removed were along the river line.
Eustace maintained the tree clearing was done appropriately and only where necessary in order to protect the water line.

“We cut the grass they walk on, clear the area, so they can recreate and we get tarred and feathered. We cut 30 trees at Bonsal, the rest were on our property, which until now they have been free to use. Accuracy is important. Our easement is 100 feet wide. We reduced our work to 15 feet on each side of the aqueduct as good neighbors,” Eustace said.
But the inspector found that the work was unauthorized.

“I recommend the issuance of a Notice of Violation from unauthorized impacts from vegetation maintenance… that has occurred within the [Flood Hazard Area],” the inspector concluded in his report.

A request for a copy of the Notice of Violation had not been granted by the DEP by press time.

Next steps
The next steps are to immediately stabilize exposed soil and assess the area for plantings, and for the water commission to submit a permit application, Shinske said.

As for fines, Shinske said, “The DEP takes into consideration both a violator’s conduct and the seriousness of the violation when considering fines.”

The Friends of Bonsal have retained Michael Spina, a landscape architect with an expertise in wetlands restoration, as a consultant on a remediation plan that includes planting trees across from the water commission’s line, and planting grasses, shrubbery and bushes along the riparian zone to help with erosion. The plan could be presented to the town as early as next week, and then forwarded to the DEP, said Jonathan Grupper of the Friends.

The water commission sprayed herbicide to keep the tree stumps, kept to keep the banks from eroding, from sprouting.

“Our normal procedure would have been to remove the stumps. Mr. Grupper asked us to leave the stumps, which required us to spray the stumps, so that they did not resprout. Then he complained to the DEP about the spraying. I see this as ‘no good deed going unpunished,’” said Eustace.

“We want our relationship with the water company to go back to sharing an interest in the natural state of the preserve. We want to move on from this ugly chapter,” said Grupper, adding that both Friends and visitors keep an eye on property.

If the water company can’t produce a copy of its easement, the town could be at risk. If Green Acres considers the tree clearing a diversion, Green Acres could reach out to Montclair for mitigation; Green Acres has a contract with Montclair, not the water company, for the property, a DEP spokesman said.

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