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Pines Commission Update

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)

  1. All development within a Military and Federal Installation Area shall be in substantial conformance with the minimum standards and guidelines contained in this Plan, except where incompatible with national defense mission or other national security requirements as provided in (d) below.
  2. (b)  Commission approval required: Except as provided in an intergovernmental agreement, no development shall be initiated by any state or local public agency prior to conferring with and obtaining the approval of the Commission pursuant to the procedures established by this Part. Except as provided in an intergovernmental memorandum of agreement, the Commission shall review development within a federal military installation or development by another federal agency only where a state or local permit is required by Federal law or regulations. Such reviews shall be in accordance with the provisions of Part VII of this subchapter. 

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.

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