NORTH WILDWOOD – Construction is nearly complete on a dune that the city and the state Department of Environmental Protection agreed should be installed in front of the North Wildwood Beach Patrol headquarters at 15th Avenue and the beach.
In a shore town that has suffered chronic erosion and, in recent years, had its dune system devastated, a late September storm was enough to breach what little was left of the protective sand dunes in front of the lifeguard building, leaving the structure and the streets behind it vulnerable to flooding from future storms and extreme high tides.
The collaboration between the city and the DEP to get the dune built was just the latest twist in an ongoing dispute between the two sides over shore protection measures. The battle has seen legal actions and a state fine involving tens of millions of dollars even as the city and state anticipate the start of a long-awaited, large-scale dune project under the U.S. Army Corps of Engineers.
The DEP approved the city’s proposal to build the one-block dune in front of the beach patrol building in an email sent to city officials Oct. 26. The new dune will have almost 5,000 cubic yards of sand, trucked in from a quarry in Dennis Township, according to the city’s proposal.
North Wildwood Mayor Patrick Rosenello said in an interview with the Herald that the dune project will cost the city $300,000, in addition to the $400,000 it recently coughed up for a bulkhead in the same area. Both projects’ entire costs are on the city, the mayor said.
The project satisfies an obligation the city had as part of a DEP emergency authorization approved in May. The authorization allowed North Wildwood to regrade the dunes after scarping had occurred due to wave action, creating sand cliffs easily accessible from the beach.
Rosenello has been highly critical of the state agency in public statements and has in the past recommended that the city council – which has consistently and unanimously supported him – approve shore protection work that defied the DEP’s orders.
DEP Commissioner Shawn M. LaTourette this month canceled an interview he’d agreed to with the Herald to discuss his department’s role in North Wildwood. LaTourette did not reply to a previous interview request, in the spring.
The DEP’s press office has denied other requests made by the Herald to speak with officials from the Division of Land Resource Protection, the section of the DEP that is running point on the North Wildwood situation. Lawyers from the state Attorney General’s Office, which has represented the DEP in court, have told the Herald they are not authorized to answer its questions.
A Bigger Picture
Rosenello said North Wildwood would “most likely” try to recover the $700,000 for the two projects by adding it to damages it is seeking in a lawsuit that the city and the DEP are embroiled in. North Wildwood is currently litigating a $21 million breach of contract counterclaim it made against the agency, after the DEP brought the city to court in late 2022 to stop North Wildwood from building more unauthorized bulkhead.
The city argued in its pleadings that the DEP should be compelled to reimburse North Wildwood for the shore protection work it had to undertake at its own expense, during a time it argues the DEP was in violation of two state aid agreements that bound the agency to provide “significant financial assistance in addressing the serious shore protection measures required of North Wildwood to stave off beach erosion and flooding.”
The city had ordered supplies and began preparations to install a steel bulkhead that would have gone in front of the beach patrol building and connected to the existing bulkhead to the north, which the city previously installed without DEP authorization. That existing bulkhead ends between 12th and 13th avenues and continues in some form all the way to 2nd Avenue and John F. Kennedy Beach Drive, where Hereford Inlet is.
But in fall 2022 – as supplies started to arrive to extend the bulkhead to 16th Avenue, and after Rosenello told the Herald there was “no chance” the city would sit by while “a bureaucrat in Trenton is reading out of a code book and saying, ‘Oh no, you can’t do that,’” the DEP went to a judge for a restraining order to prevent the bulkhead’s extension. The judge sided with the DEP, but also allowed North Wildwood’s $21 million counterclaim to proceed to trial.
In the wake of the city’s moving in court to file the counterclaim, the DEP hit the city with $12.8 million in fines in January for its past unauthorized work, which the city said it was appealing. That litigation could eventually be settled in a different part of the state judiciary and would be handled as a different case from the city’s $21 million claim. However, in the context of settlement negotiations – which Rosenello told the Herald Thursday, Nov. 9, are ongoing with the DEP, both matters may be considered together.
In response to the $21 million counterclaim, the DEP argued the judge should dismiss North Wildwood’s suit. The agency argues that the city misinterprets the department’s obligations and that the claim is “barred by NWW’s own illegal, bad faith, and tortious conduct.” In its pleadings, the DEP said it followed the law and the city lacks a legal basis to recover the damages it is seeking. In total, lawyers for the DEP listed 23 defenses to the city’s suit.
The Bulkhead and the Dune
After continuing to resist more bulkhead, the DEP reversed course and approved a scaled-down version of the city’s request on an emergency basis, allowing the steel sheeting to be placed in front of and flanking the lifeguard headquarters at 15th Avenue. It doesn’t connect to the bulkhead that ends between 12th and 13th, but there is some dune left there that plugs that gap.
The DEP approved the bulkhead to protect the lifeguard building on Sept. 26, which LaTourette reminded Rosenello of in an Oct. 11 letter.
“Contrary to your public statements, the September 26 EA [emergency authorization] allowing bulkhead installation at 15th Avenue was not issued in response to the breach of the dune at 15th Avenue on or about October 1, 2023. Rather, the EA was issued prior to the breach and, notably, at the urging of the DEP,” LaTourette wrote to Rosenello.
Complementing the bulkhead will be the new dune; however, the projects are not really related, according to Rosenello. He told the Herald that a requirement – which was part of an emergency authorization approved by the DEP to regrade cliffs prior to the summer after they were carved into the dune last offseason – called for new sand to be introduced to bolster the dune and mitigate the effects of the regrading after the summer season.
However, Rosenello said as erosion worsened, the city determined that introducing new sand on the ocean side of the remaining dune, the original plan, would be pointless because he felt it would quickly wash away. The city favored placing sand landward, creating a secondary dune line.
Instead of bringing in the 1,881 cubic yards required as part of the emergency authorization, North Wildwood proposed a larger-scale project because it felt more confident in the dune’s survival prospects if it sat in a different footprint, further from the ocean. He expressed that position in a letter to LaTourette dated Oct. 3. The DEP authorized the new plan Oct. 26.
“Where that dune used to be is now the intertidal zone. So, for us to dump 1,500 cubic yards of sand where that dune used to be would be a complete waste of time,” Rosenello said. “We proposed we’d actually bring in more sand, but create this secondary dune line back here that we think would have a much better chance of surviving. They agreed with that.”
In letters traded last month with LaTourette, the mayor expressed disagreement with the DEP’s strategy on where to add sand, with the state initially favoring placing it where the former dune line existed. He said the city went for this project because the imported material is out of the intertidal zone. He isn’t necessarily counting on the second dune line as a strategy that can be implemented farther north, however.
“I don’t look too deeply into these things,” Rosenello said in a Nov. 3 interview. “Part of the frustration here is, in this situation, we worked together and we came up with a common sense solution that didn’t waste taxpayer dollars. So that’s a good thing.
“What I’ve learned is that the very next problem we have — which it’s not if we have a problem, everybody knows there’s going to be another issue in that area — then we never know what to expect.”
Patching Holes on a Sinking Ship?
Rosenello said he’s pushed for a more thoughtful and comprehensive approach to shore protection while the island awaits a much anticipated but long-delayed project that would be funded by the federal and state governments.
“I don’t want to make this a negative comment, but I’ve asked the [DEP] commissioner multiple times, ‘Can’t we come up with a comprehensive plan? … Doesn’t it make more sense for North Wildwood and the DEP to come up with a comprehensive plan for shore protection at this location, instead of dealing with these things through EAs [emergency authorization requests]?’ Instead, it looks like we’re going to be dealing with these things through EAs until 2025. It just makes no sense,” the mayor told the Herald.
In LaTourette’s Oct. 12 letter, he pointed the blame for the patchwork process at the city.
“Rather than engage in continued emergency permitting driven by preventable conditions, DEP strongly urges the city to resume and complete its long-pending CAFRA individual permit application. Through technical review of that application, the city and DEP can engage in a productive dialogue about more sound beach management practices that will meet our shared goal of improving coastal resilience,” LaTourette wrote.
In an interview, Rosenello quoted one of the country’s Founding Fathers, Thomas Paine.
“To argue with a man who has renounced the use and authority of reason … is like administering medicine to the dead,” Paine famously said.
According to the mayor, that’s what it’s been like dealing with the DEP leadership on shore protection strategies for North Wildwood. He said the department continues to advocate for trucking sand in, either by back-passing it from the beaches of Wildwood and Wildwood Crest, or by trucking it in from another source, as the city did to build the new dune.
For years, the city did use back-passing to replenish its beaches, but it has resisted the idea the past two years, arguing it is not practical costwise and would essentially be dumping sand into the ocean.
“At some point, you just say, OK, I’m done,” Rosenello said, adding that the cost of the new dune, which spans only one block and adds no sand to the beach, is proof a larger project to import sand would not be financially feasible.
A Settlement?
While it appears the city and state may still be far apart on some practical issues, Rosenello did say the city’s lawyers are actively involved in settlement negotiations with the state deputy attorney generals who are handling the litigation for the DEP.
The long-awaited Five Mile Dune project – a U.S. Army Corps of Engineers endeavor sponsored by the DEP, which is funded by the federal and state governments – is now expected to begin construction in 2025, according to LaTourette’s October letter. It has been in the works for over 10 years and failed to meet prior target dates.
The project would harvest sand from the beaches of Wildwood and Wildwood Crest and hydraulically pump it to create a dune running from Hereford Inlet to Cape May Inlet. Easements, which must be acquired by the state before the project can begin, are still being obtained. In North Wildwood, nine of the necessary 10 easements have been obtained, according to statements made in court filings by lawyers for the DEP.
Rosenello said he is not at all confident in the 2025 construction date. The city would like to settle the disputes encompassing the DEP-levied fines and the city’s claim. But it would also like to work out an agreement on a short-term shore protection solution, the mayor said.
“We are always open to having discussions with the DEP about settling everything,” he said. “One thing, two things, three things. But there’s been so much other static in the air, the settlement stuff kind of gets pushed to the back burner.”
Those settlement discussions were taking place as recently as this month, the mayor said. The two sides are due back in court, in front of Judge James H. Pickering Jr., on Wednesday, Nov. 29, for a case management conference regarding the city’s breach of contract claim.
Contact the author, Shay Roddy, at sroddy@cmcherald.com or 609-886-8600, ext. 142.
