WolfeNotes.com

[Update – 11/22/15 in text below, we review speculations in light of current reality]

I wrote about last Friday’s Pinelands Commission meeting, mostly just to describe what transpired (if you are interested in what went on at Friday’s meeting, see this).

So, today, we do some informed speculation on what might be coming down the pike:

1) Surprise Guest Suggests Another Manipulative Move

There was a surprise guest who spoke to the Commission during the public comment session to offer his time and expertise to assist the Commission’s nascent efforts to reform the MOA regulations in the CMP.

That guest was none other than Tony D. of the NJ Builders Association:

Tony DiLodovico Chosen NJBA Associate of the Fourth Quarter. Tony DiLodovico, Director of Regulatory Compliance for Omland Engineering has been named as NJBA’s Associate of the Fourth Quarter. He has been an active member of NJBA and the Shore Builders Association of Central New Jersey (SBACNJ) for over 20 years.

Tony just happens to be a friend and former colleague of Nancy Wittenberg, currently the Executive Director of the Pinelands Commission.

Wittenberg previously served as a NJBA lobbyist.

Here’s what we had to say back in 2006, when Gov. Corzine’s DEP Commissioner Lisa Jackson selected Wittenberg as Assistant Commissioner for Environmental Regulation:

BUILDERS’ LOBBYIST TAPPED AS TOP STATE ENVIRONMENTAL REGULATOR

“This appointment shows that the revolving door of business lobbyists exerting undue influence on environmental regulation will be swinging briskly,” said New Jersey PEER Director Bill Wolfe. “While professionally and academically qualified to fill the post of Assistant Commissioner, Ms. Wittenberg’s appointment is not in the public interest and sends the wrong message to the public and professional staff and scientists in the Department.” […]

“Her extreme positions and statements as a NJBA lobbyist raise legitimate questions about her judgment and capacity to fairly and objectively administer environmental laws,” Wolfe added, noting that, as Assistant Commissioner for Environmental Regulation, Wittenberg will be a member of the DEP Management Team and influence Department-wide policy, budget, staffing, and enforcement decisions.

We reiterated those concerns in 2010, when Gov. Christie appointed Wittenberg to the Pinelands Commission ED post, see: Christie Names Former Builders Lobbyist As Head of Pinelands Commission

But others were far less concerned about Ms. Wittenberg: (see 11/30/10 Asbury Park Press story by Kirk Moore):

“I think Nancy is a very knowledgeable and talented person,” said Jeff Tittel, director of the Sierra Club’s New Jersey Chapter, who describes her as a friend. But “she looks at land use very differently than environmentalists do.”

Carleton Montgomery of the Pinelands Preservation Alliance said he thinks Wittenberg can be effective at managing the Pinelands’ land-use plan that covers 22 percent of New Jersey’s land mass.

“I’m optimistic that she will turn out to be a good choice. She brings a wealth of skill and experience to the job,” Montgomery said. Wittenberg has a reputation for intelligence and savvy management that could stand her well in the new job, he added: “The Pinelands Commission is in a weakened state, and its budget has been cut to the bone.”

If nothing else, the South Jersey Gas pipeline debate absolutely proved that Ms. Wittenberg is “savvy” and “talented”.

Getting back to Tony D.

I’ve known Tony for years and we spoke in depth during the Commission’s 30 minute executive session on Friday about the pipeline debate. I asked him why he was getting involved.

Based on that discussion, first of all, it seemed clear that he had been talking with Nancy, because while Tony agreed that the MOA process was seriously flawed, he praised Nancy and blamed Chairman Lohbauer for pulling the rug out from under her and Commissioner Lloyd for throwing a monkey wrench into the process at the last minute.

Second, putting 1 plus 1 together, after hearing Tony volunteer to serve on any Ad Hoc Committee to reform the MOA process, I strongly suspect that Nancy  may have given Tony a call and asked him to come and get involved.

I suspect that the overall game plan is to not oppose Chairman Lohbauer’s proposal to form an Ad Hoc MOA rule reform Committee, but rather to install Tony on the inside, delay and co-opt the MOA reform process, and divert the focus while SJG pursues an alternate pipeline route outside the Pinelands.

[Update: The ad hoc MOA Committee is still not finished its work. There has been little opposition. So, I was half right about delay. But I was wrong about Tony D. and hopefully I can take some credit here for derailing his involvement.

I was right that SJG would pursue an alternative, but not an alternative PIPELINE ROUTE. SJG pursued an alternative REGULATORY ROUTE.]

2) Governor’s Office Monitoring

During the course of the SJG pipeline debate, the Commission was criticized as appearing to be a puppet of Gov. Christie, who strongly supported the pipeline and was exerting political pressure behind the scenes in several ways.

A key focus of the public debate was that the Commission had to protect the integrity of the CMP AND the independence of the Commission.

As I’ve written, the Pinelands Commission is an independent regulatory agency.

Under section 4 of the Pinelands Act, the Commission is legally “in but not of” the DEP, and thus independent form both the DEP and the Gov.’s Executive Branch management control.

For the purpose of complying with the provisions of Article V, Section IV, paragraph 1 of the New Jersey Constitution, the commission is hereby allocated within the Department of Environmental Protection, but, notwithstanding said allocation, the commission shall be independent of any supervision or control by such department or by the commissioner or any officer or employee thereof.

Under the Pinelands Act, the Governor has three type of powers to influence the Pinelands Commission:

a) nomination of 7 Commissioners, but that power is checked by the Senate who must confirm his nominees. And there is no question that the Executive Director serves the Commission, not the Gov. (section 5):

g. The Governor shall designate one of the members of the commission as chairman. The commission shall appoint an executive director, who shall be the chief administrative officer thereof. The executive director shall serve at the pleasure of the commission, and shall be a person qualified by training and experience to perform the duties of his office.

b) budget, but again that power is checked by the Legislature who must vote to pass the Gov.’s budget; and

c) on the CMP and overall policy, the Gov. has “negative” power, i.e. procedurally, the Gov. is provided a copy of the CMP after its adoption by the Commission. The Gov.’s effective policy power is limited to the Gov.’s power to veto the minutes to block any action by the Commission. The Gov. exercised that power to block a staff raise approved by the Commission.

But while the Gov. can block actions by the Commission, he can not direct the Commission to Act.

So, given the independence of the Commission and the Governor’s limited powers, why would the Commission allow the Gov.’s Office to attend  and listen in on their confidential deliberations in executive sessions?

The Commission went into Executive Session on Friday to discuss litigation. The parties to that litigation are the Pinelands Commission and the Pinelands Preservation Alliance. Some of the legal issues involve potentially embarrassing – or even incriminating – emails involving the Governor’s Office.

The Gov.’s Office and the Pinelands Commission have potentially conflicting interests and the Gov. is NOT a party to the PPA lawsuit.

So, why would the Commission allow the Gov.’s Office to sit in on confidential Executive Session deliberations on the PPA OPRA litigation?

At a minimum, that raises a perception issue, e.g. the Commission bending to the will of the Gov.

But it also raises serious legal ethics issues. The Attorney General is representing the Pinelands Commission. The Commission is the AG’s client, not the Gov.’s office.

Just like it would be improper for the BPU or the DEP to attend Executive Sessions, it also is wrong for the Gov.’s Office to be allowed in the room.

What I think this means is that the Gov. is still pressuring the Commission – the Gov.’s attempts to replace Commissioners who defied him and voted against the SJG pipeline is one very public and obvious threat.

Whether they will fold is unclear.

But, at a minimum, the Commission should kick the King out of their Court.

3) Pipeline Around pines?

I am getting vibes that some pipeline opponents are seeking to have SJG pursue and alternate route that skirts the Pinelands and would not require Pinelands Commission review, and that they might SUPPORT such an alternative pipeline route.

That would be a very bad idea – see many of the 10 reasons to oppose the SJG pipeline.

An alternative route would be far more damaging to natural resources; as fossil infrastructure, would have the same climate change impacts of re-powering BL England plant; would undermine economic investments in renewable energy; and have the same air pollution impacts.

I really hope that my gut is wrong on this.

[Update: I was wrong about this – SJG pursued another regulatory option. Glad I was wrong and that opponents have remained unified.]

4) Military Madness loophole?

The new issue of the New Jersey Natural Gas proposed pipeline was discussed on Friday.

There were suggestions that the location on Dix/McGuire Joint Base could be used to dodge CMP restrictions.

Do I smell a military loophole being manufactured?

Something to get clarified, ASAP.

[Update:  Got this one right –  It seems like NJ Natural  Gas did indeed concoct a false military need.]

Multiple Initiatives Derailed

There’s been an across the board abandonment of prior DEP efforts to improve protections for NJ’s water resources.

Whether’s it’s developing drinking water standards for toxic chemicals in our water supplies; protecting Barnegat Bay from nutrient pollution; expanding protections for natural vegetated stream buffers; updating the 25 year old Water Supply Master Plan; or a host of other initiatives, the Christie DEP is headed in reverse on protections for NJ’s water resources.

That disturbing conclusion overwhelmed me yesterday, as I was doing some background research for the upcoming debate on the new Open Space implementation legislation. That investigation brought me to the water resources section of a 2004 DEP Open Space Master Plan.

The contrast between what DEP was doing then and what they are doing now is stunning.

Perhaps even worse, DEP efforts to better plan for and integrate land use and water resource protections have completely been abandoned.

And that policy U-Turn has drawn very little criticism from the Legislature, the media, or NJ’s environmental groups, who themselves have for the most part abandoned these issues, moved on to other issues, and followed the Foundation grant money.

[Private foundations and most NJ conservation groups have abandoned the traditional framework of the Clean Water Act,  ENGO activism, and government driven planning and regulation in favor of an educational and market based model that relies on private, individual, voluntary actions and land acquisition. The failure to fund a Delaware Bayshore regional initiative, modeled on the Highlands and Pinelands regional planning models, is the textbook illustration of that sea change. “Talk softly and carry no stick”. More posts on this major paradigm shift to come.]

That 2004 Open Space Master Plan was required by legislation signed into law in 2002 by Governor McGreevey.

For the first time, the Legislature emphasized protection of water resources as a priority in the open space program, specifically listing aquifers, stream corridors, and flood prone areas as important targets for acquisition, and required DEP to prepare an Open Space Master Plan that prioritized and integrated water resource protections –

This is something that is totally lacking in the efforts by current proponents of open space funding, who selfishly and foolishly slashed DEP water resource program funding.

Back in 2002, the Legislature found:

• that the  protection and preservation of New Jersey’s water resources, including  the quality and quantity of the State’s limited water supply, is essential to the quality of life and the economic health of the citizens of the; that the acquisition of flood-prone areas is in the best interests of the State to prevent the loss of life and property;  

• that of the open space preserved, as much of those lands as possible shall protect water resources and preserve adequate habitat and other environmentally sensitive areas; 

That expansion of the role of water resource protection did not come at the expense of NJ’s urban areas – here was the 2005 earmark:

Urban Parks – Camden and Mercer counties $12,000,000 

Providing recreation opportunities in urban areas is a national priority. Urban public park open space and recreation areas have suffered from a lack of funding, maintenance and available land. Creating and enhancing public open space in urban areas improves the quality of life for urban residents and workers, can be an urban redevelopment catalyst and serves a critical role in controlling suburban sprawl. Recognizing the importance of urban parks, Green Acres will continue to acquire land in New Jersey’s cities to expand and improve park and recreation opportunities.

Again, our current crop of elite open space advocates have abandoned that effort as well as attempts to promote environmental justice.

So, let’s take a look at some of the “Statewide Water Resource Initiatives” included in that 2004 DEP Plan and then underway in 2004 during the *McGreevey Administration (excerpts do not include the nutrient reduction strategy initiated by new standard for phosphorus) – and note that all of them have been derailed by Governor Christie’s DEP:

Thanks to my friend Scott Olson for forwarding this – I like the Storify format

Take a look at the aerial view above – it’s a horse farm in West Milford:

Let’s zoom in for a closer look:

Now consider this statement:

Ruga said preserving land delivers a benefit not only to the landowner, but to all the taxpayers.

“As taxpayers, we’re buying something of value from him that provides a public benefit,” Ruga said.

“Farmland can be very good recharge for groundwater, or maybe it’s a habitat for birds. But when you pave it over, it creates all sorts of problems for eternity.”  

~~~ for context and complete details,  see: Passaic County buys 45-acre working horse farm in West Milford

That is one pile of horseshit. Let’s take the turds one by one (my grandfather called them “road apples”):

1. There is very little “recharge for groundwater” on this site, and barn roofs, parking lots, and swimming pools do not provide high quality bird habitat.

2. The land in question is in the Highlands Preservation Area, in the Newark Watershed.  It is protected by very strict regulations that severely limit development. It can not legally be “paved over”.

3. The only “public benefit” I can imagine that could result from this site would be related to water quality, which is being adversely impacted by nutrient runoff from all the horses and by sediment loads from all the impervious surfaces on the site. Another public benefit could be public access.

But that would require that the site be purchased and current horse farm use terminated. Perhaps the buildings could be demolished and the fields be allowed to revert back to forest.

But the $1 million deal was for purchase of development rights only, so the land will continue to be operated as a horse farm, the adverse water quality impacts will continue and they land will be privately owned and operated.

So, the public and the environment get virtually NOTHING for $1 million – $22,222 per acre.

This is a perfect example of the abuses that must be reformed in the Open Space and Farmland Preservation programs.

[* The owner purchased the “farm” for $2.1 million, and its farmland assessed – he paid $213 in taxes on the farmland portion in 2012]

[An anonymous reader sent me an email that notes:

The horses are$60,000  $400,000 Arabians and show horses and they make money boarding horses for other wealthy folks on the area

In fact, it is likely that there would be more real public benefits if this site were developed as cluster designed affordable  housing.

a) The site would have less impervious cover, less sediment and nutrient loaded runoff, and more groundwater recharge, more habitat, and more public access.

b) Horse farms, irrigation, and swimming pools consume a lot of water so water consumption could even go down, as could traffic, noise, and dust nuisance impacts.

c) Social justice could be advanced, as low and moderate income people would benefit from the public investment, instead of elite equestrians who now use the horse farm.

d) energy consumption and greenhouse gas emissions could be higher, given the site’s remote location and limited access to public transit. But I would need to know more about how much energy and horse farm consumes, which I assume is not insignificant.

Look at the regional context – on the edge of the Clinton reservoir:

 

Proposed NJ Natural Gas pipeline will require Commission approval

Discussion of MOA Rule Reforms Put Off Until Next P&I Meeting

Commission Votes to Settle PPA Litigation

The Pinelands Commission met this morning, so thought I’d update folks, particularly with respect to the gag order, new 3 minute rule, MOA rule reforms,  & email issues I’ve been focused on.

• New pipeline dispute brewing?

At the outset, during the Executive Director’s report, ED Wittenberg rather cavalierly noted that Pinelands staff had had “preliminary discussions some time ago” with NJ Natural Gas regarding a proposed pipeline. Wittenberg said “we talked” and that “they knew” about Pinelands CMP requirements. Wittenberg noted that the Pinelands portion of the pipeline would be located on Joint Dix/McGuire Base. Wittenberg said that “no application” had been submitted.

Wittenberg’s disclosure of prior staff discussion with NJ Natural Gas were not provided as a routine matter – Wittenberg only disclosed this fact in response to a recent press article (in which NJ Natural Gas stated that they planned on receiving DEP and Pinelands approvals and commencing construction before the end of the year. I commented on that article that such a timeframe was not realistic, given the SJG pipeline battle.)

I later told the Commissioners that they and the public should not learn from the ED about these kind of meetings only after projects were reported in the press. There needs to be some kind of public disclosure requirement for these kinds of “pre-application” meetings.

Commissioner Ashmum stated that the pipeline route is in the Preservation Area and that regardless of the location on Joint Base, warned that Commission approval would be required.

However, while I am not an expert on CMP rules, there may be loopholes, like this at NJAC 7:50-4.52 (for public development)

During the public session, I strongly criticized Wittenberg’s failure to disclose the staff meetings with NJ Natural Gas to the Commission and the public at the time that they occurred. She was repeating mistakes made during the pre-application review process of the South Jersey Gas pipeline.

The public, landowners, and local governments have a right to know about pipeline route planning issues being discussed with Pinelands Commission staff.

The Commission needs to establish some kind of tranpasrency reforms regarding those kind of “pre-application” discussions.

• Gag Order – 3 minute rule

While the new 3 minute rule was in writing on the agenda, to his credit, Chairman Lohbauer did not mention it and he did not limit speakers to 3 minutes, so I think this is a non-issue. [*Maybe this backed them off]

Regarding the confidential meals,  ED Wittenberg advised the Commissioners that 2 sets of emails and documents were in the Library for Commissioners to read (sounds like one of those absurd national security reading rooms, where a member of Congress can go in and read documents but not take notes or make copies or talk publicly bout what they read. Absurd that we have this secrecy at the PC.)

Wittenberg did not mention the Gag Order adopted by Resolution at the direction of the Attorney General’s Office.

At the very end of the meeting, Commissioner Rohan Greene expressed her concern about it and asked  how it applied to Commissioner and others.

The DAG took exception to the term “gag order” and said the Resolution was intended to keep confidential litigation documents confidential.

Commissioner Lloyd acknowledged that the Resolution was rushed through at the end of the last meeting and not well explained.

He said the purpose of to was to allow Commissioners to see all the documents that had been withheld or redacted in the PPA OPRA lawsuit and to keep litigation documents confidential.

As Roham Greene observed and I’ve written previously, the Resolution constitutes a gag Order because it prohibits Commissioners from publicly speaking about the contents of the emails they read in the secret reading room.

• MOA Reforms & Status of SJG application

Chairman Lohbauer began the meeting by repeating his recommendation to the P&I Committee to form an ad hoc committee, with public members, to develop recommendations for MOA reforms. He asked for Commissioners to provide their thoughts to him and said the issue would be disused at the next P&I Committee meeting.

So, there was no discussion by the Commission today, other that Commissioner Rohan Greene, who prized Lohbauer for his leadership an said that she supports MOA reforms.

During public testimony, 5 members of the public (myself included) spoke about the need to strengthen the CMP MOA regulations.

Fred Akers read detailed letter of his and PPA prior efforts to strengthen the MOA rules for over 2 years, including a timeline:

The Commission needs to review and strengthen the MOA process now, and there is no clearer example of why you need to do this than the high cost of the failure of your proposed MOA with BPU for the SJG pipeline

Folks from Burlington County specifically asked the legal status of the SJG application, i.e. after the defeat of the MOA, what was the status of the application?

Wittenberg replied that there was no application pending – essentially that the matter was dead.

Lawyer Arnold Fishman spoke and took exception to Wittenberg’s claims, criticizing them as “myopic” and  like proceeding “with blinders on”.

Fishman explained that the case was currently pending before the Appellate Division, outlined SJG’s legal arguments, and warned that SJG was seeking remand to the Commission. He said the matter is still before the Commission because the Court could remand it at any time. It’s not over until the Appellate Division decides (assuming they dismiss SJG case) and the time for appeal of the decision is tolled.

I spoke and recommended that the Commission strengthen the CMP MOA rules by developing more detailed standards and criteria to beef up the current vague and excessively discretionary CMP regulatory standard for MOA’s (@ NJAC 7:50-4.52(c)2.)

afford an equivalent level of protection of the resources of the Pinelands than would be provided through a strict application of the standards of this Plan.  

I suggested that the Commission look to NJ DEP’s Guidance and Technical Manual regarding reductions in the 300 foot C1 stream buffers, which require demonstration of “equivalent ecological function” (see: NJAC 7:8 -5.5(h)1.ii.)

The encroachment shall only be allowed where applicant demonstrates that the functional value and overall condition of the special water resource protection area will be maintained to the maximum extent practicable.

I also recommended stronger standards and definitions of public projects and public entities, to avoid the abuse of using BPU to cover for the private SJG project.

I also recommended that the Commission impose an administrative moratorium on review of any applications seeking a MOA or Waiver of Strict Compliance until CMP regulations are strengthened, so we don’t repeat the mistakes made during the SJG review process.

The model for a moratorium was the Delaware River Basin Commission’s moratorium on review of fracking applications until new safeguards were developed to address gaps and weaknesses in current DRBC regulations.

I again criticized the actions of ED Wittenberg and Counselor Roth as examples of abuses known as “agency capture”. In fact, there were examples of Roth actually coaching the applicant SJG on how to respond to concerns of various Commissioner regarding alternative routes.

Such behavior in not only unprofessional and unethical, it undermines the public’s trust and confidence in the Commission and erodes the Commission’s integrity and independence.

They must takes steps to restore lost trust and credibility and gain management control over Wittenberg & Roth.

I’ll end this post, which is already too long, by noting another problem I will write in more detail about soon.

While in Executive Session, when the Commission was discussing litigation, someone asked me:  who was the woman that was allowed to remain in the room?

I learned that the woman was a representative of Gov. Christie’s authorities unit.

I tried to object to that at the end of the meeting, but was unable to do so. Her presence is a big problem.

After returning from Executive Session, the Commission voted to settle the OPRA lawsuit filed by the Pinelands Preservation Alliance.

More to follow, especially about a surprise appearance of a NJ Builders Association representative, who just happened to volunteer to be a member of the MOA reform ad hoc committee.

Obvious Attempt to Limit Public Discussion Of Controversial Emails

A Credibility Crisis

Pinelands Commission Hunkers Down – Digs Hole Deeper

The Pinelands Commission will hold their regularly scheduled monthly meeting tomorrow, February 13 at 9:30 am.

But something highly unusual – if not unprecedented –  is on the agenda: a new 3 minute limit on public testimony:

General Public Comment (to ensure adequate time for all members of the public to comment, we will respectfully limit comments to three (3) minutes. Questions raised during this period may not be responded to at this time but where feasible, will be followed up by the Commission and its staff.)

In theory, the 3 minute limit possibly legally could be justified in certain limited circumstances – despite being inappropriate.

For example, the Commission could impose a 3 minute limit if the Commission had a controversial issue on the agenda where hundreds of people were likely to want to speak, like during last year’s debate over the South Jersey Gas Co. pipeline, where the Commission limited public testimony to 3 minutes at the public hearing (see: You get 3 minutes, then sit down and shut up).

But there is NOTHING substantive on the Commission’s agenda tomorrow that could remotely justify the 3 minute limit.

What the Commission fears is public testimony objecting to what’s NOT on the agenda: that is, a robust discussion of the improper review process revealed by a trove of internal emails that showed improper involvement of South Jersey Gas and the Governor’s Office (for the details of all that, see:

• Agency and utility under scrutiny for proposed Pinelands gas pipeline (Philadelphia Inquirer)

• Christie, Pinelands staff, industry too chummy (Asbury Park Press)

• Emails Show Gas Company Virtually Owned Executive Director of Pinelands Commission (Wolfenotes)

The highly unusual move to impose a 3 minute limit on public testimony follows last month’s unprecedented imposition of a gag order on Commissioners, see:

• Attorney General Invokes Privileges To Gag Pinelands Commissioners From Discussing Christie’s Office Emails
• Governor Christie’s Guantanamo Diary Redactions

At the end of last month’s Planning & Implementation Committee meeting, Chairman Lohbauer stated that, in light of the emails, he would conduct an informal poll of all Commissioners to gauge support for his proposal to establish an independent ad hoc Committee, with public representative, to reform the Commission’s regulations regarding Memoranda of Agreement (MOA).

The outcome of that poll should be on the agenda and publicly discussed.

Concerning the troubling review process and relationships disclosed in those emails, Chairman Lohbauer told the Philadelphia Inquirer:

“There was a degree of closeness between the applicant and staff that went beyond the neutrality appropriate to a review process,” said [Pinelands Commission Chairman] Lohbauer, a lawyer. ~~~ Philadelphia Inquirer (1/26/15)

I have no doubt that gag and the 3 minute limit  are blatant attempts by the Governor’s Office to do damage control and prevent public discussion of totally improper involvement by South Jersey Gas and the Governor’s Office in manipulating Executive Director Wittenberg and Counselor Roth.

Do they think we are stupid?

Do they think we will stand for this?

Do they think the media won’t see it for exactly what it is?

Tomorrow, we take no prisoners.