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Gov. Christie Cans Pinelands Commission Chairman

January 29th, 2016 No comments

Replacement of Chairman Lohbauer with Republican Hack Is The Latest Retribution

Another Attack on Pines

The Pinelands Commission appointments are becoming an extended montage from Goodfellas – you don’t know who is going to get hit next. ~~~ Doug O’Malley, Environment NJ

I went to the Pinelands Commission’s meeting this morning expecting to listen to a staff briefing on climate change.

Mark Lohbauer, former Chairman, Pinelands Commission

Mark Lohbauer, former Chairman, Pinelands Commission

Instead, I got blind-sided by Chairman Lohbauer’s announcement that Gov. Christie’s Office called him last night and told him he was being replaced by Commissioner Earlen (he is Burlington County’s representative – read Burlington County Times story and this for a flavor of county issues with Mr. Earlen’s County Freeholder appointment. *And the Asbury Park Press story and the Philadelphia Inquirer story.]

Lohbauer had the integrity to defy the Gov. and vote to oppose the South Jersey Gas pipeline – leadership that I’m certain influenced NO votes from other Commissioners – and the independence to buck the Governor on a host of other issues. He even had the temerity to write an Op-Ed – twice! -proudly defending his pipeline NO vote and upholding the integrity of the CMP (see this and this).

Earlen voted in favor of the pipeline and has played a passive role at the Commission, rarely making any public comment. His background is in construction and development, so bright red flags are raised, even without the obvious Gov. Christie reprisals. Take a look at his employer’s website, where Earlen serves as Vice President for Real Estate, Environmental and Public Affairs – is this compatible with the mission of the Pinelands Commission?

silvi

Lohbauer always provided plenty of opportunity to allow the public to speak and he treated people with respect and listened to their concerns – this is the opposite set of values than the arrogant authoritarians who populate the Christie administration.

Perhaps Lohbauer’s support for addressing climate change was the last straw that sealed his fate. Or it could have been his remarks that were critical of Christie’s pawn ED Wittenberg or the Gov. Conditional Veto of the soccer fields bill.

Add Lohbauer to Christie’s long and growing hit list of Pinelands Commissioners Jackson, and Commissioner Ficcaglia and Commissioner Lloyd. (that doesn’t count similar Christie attacks on those who have integrity and independence, including Highlands Council Director Swan – and Legal Counsel Tom Borden, who resigned in protest).

It’s not even technically official yet – Earlen was not yet sworn in – but its been posted prominently on the Commission’s website (ED Wittenberg probably wrote it herself in glee).

Mudder fuckers

To make matters worse, instead of a briefing on climate change – which I warned was being derailed behind the scenes by Executive Director Wittenberg – the Commission was besieged by the off road motorized recreational community, commonly derogatorily referred to as the “mudders”.

For a brief look at that destruction, from the website Pine Barens Under Siege: (additional photos forthcoming):

pins under seige

Substantively, the “mudders” don’t have a leg to stand on scientifically or politically – not many people would support monster trucks doing donuts in sensitive vernal meadows, wetlands and stream channels.

But bureaucratic incompetence and arrogance by the Pinelands preservation advocates has surrendered the reasonable policy high ground.

The Christie DEP gave the mudder faction 2 strong legs to stand on by totally mismanaging the DEP’s Motorized Access Plan (MAP) to restrict off road access and close certain roads.

Making similar mistakes, Pinelands conservationists – by working covertly behind the scenes with DEP in developing the MAP before it was publicly vetted in DEP’s flawed “Stakeholder” process – gave the mudders a rope to hang DEP and themselves with.

Those mistakes have not only forced DEP to retreat and discredited the MAP initiative, they have generated a huge backlash and empowered mudders and a supporting group of more responsible motorized allies.

The DEP retreat has emboldened the mudders and made a growing problem even worse.

COAH – Huge Affordable Housing Conflicts With CMP

After the Christie attack and onslaught of the mudders, we were then treated to a briefing on how affordable housing litigation could overwhelm the Pinelands with far more housing units and density than allowed under the Comprehesive Management Plan and approved local zoning scheme.

Staff presented a crude analysis of COAH obligations under various analyses now before the courts and how those numbers on affordable housing obligations would impact certain Pinelands Towns under CMP requirements.

Despite appeals from Commissioner Lloyd and public commenters – including myself who recommended filing a amicus -,the Commission seemed very reluctant to get out in front of the COAH freight-train. The best they could even imagine was to try to write a letter to someone laying out their concerns about threats to the CMP.

Hello! Don’t just stand there, DO SOMETHING!

Not Much Work Getting Done – Other Than Rubber Stamping Pipelines

On top of all that bad news, staff presented the current status of implementing all the recommendations of the Plan Review Report

 The takeaway message of that staff briefing is that the Commission has done virtually nothing to advance the recommendations, and Gov. Christie must approve any CMP amendments anyway so there’s not much use in trying. The refrain:

Next Steps: Resubmit proposal to Governor’s office.

Perhaps the Pinelands lawyers can tell me where the law says that all CMP amendment rule proposals must be submitted to and approved by the Governor’s Office before NJ Register proposal – just where is that requirement in the Pinelands Act or the Administrative Procedures Act?

My understanding is that the Gov. has power to veto the minutes – that is very different than a power to approve rules before they are released for public view or proposed in the NJ Register.

I was particularly disgusted with the runaway from the commitment to adopt CMP amendments to implement the ecologically based water allocation restrictions known as the Kirkwood-Cohansey project.

It was perhaps the worst day in Pinelands history – the only thing that can put some brakes on this runaway train is either litigation, direct action protests, or the federal government.

Each of these issues require an individual post, which I hope to get to in the coming days.

I just had to vent at this point. And, just to turn your stomach further, take one more look at the new Chairman of the Pinelands Commission’s career thang:

silvi2

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Pinelands Executive Director Defends Gov. Christie and Again Sandbags the Commission on Soccer Controversy

January 18th, 2016 No comments

I began writing this as a post on the resolution of the Pinelands soccer fields land use dispute, the DEP Motorized Access Plan (MAP), and the kickoff of the Pinelands Commission’s 2016 as a year in preview, but it got way too long.

So I am breaking it up into 3 separate posts, starting now with the least significant issue about soccer fields. Next I will do the DEP MAP and last the 2016 year in preview.

I did not follow the soccer controversy. My initial take on it was that it was being used as a diversion to deflect focus and criticism from Executive Director Wittenberg’s approval of another Certificate of Filing for the NJ Natural Gas pipeline.

While the soccer fields dispute may seem a minor issue, it highlights, at best poor communication, or more likely a continuing pattern of unilateral acts of insubordination and sabotage by Executive Director Wittenberg.

Once again, Wittenberg is following the direction of Governor Christie and not the Pinelands Commission.

This time, unlike the South Jersey Gas pipeline controversy, the Commission’s policy position was unanimous, was made clear publicly, and was communicated to Wittenberg, so the defiance has no justification in any ambiguity or a divided Commission.

So, what’s up with this?

During Friday January 15, 2016 Commission meeting, Chairman Lohbauer summarized the Commission’s position in strong opposition to the soccer fields legislation, to Gov. Christie’s Conditional Veto of the bill passed by the Legislature, and to the Legislature’s concurrence with the Gov.’s CV: (verbatim quotes):

Staff worked hard to put together a strong position as to why the bill should not be passed.

The Commissioners joined unanimously in taking a stand against the passage of that bill. We communicated that to Trenton.

When the bill was passed, the Governor’s Office did conditionally veto it. …..

So once again, we lobbied to encourage the Legislature NOT to pass the Conditional veto  ….I’m sad to say that it did pass. (watch, at time 34:00) (emphases mine)

[To reiterate and make clear: Lohbauer opposed 3 discrete things that occurred in discrete timeframes: 1) the proposed legislation; 2) the Gov.’s conditional veto; and 3) the legislature’s concurrence with the Gv. CV.]

But just 4 days prior to Chairman Lohbauer’s explanation and during a critical period, Executive Director Wittenberg took the OPPOSITE position in the press, in support of the Governor and the CV .

Worse, Wittenberg stated this position BEFORE the legislature had concurred with the Governor’s CV, thereby sending a green light from the Commission that contradicted the Commission’s publicly stated position:

“Pinelands Commission Executive Director Nancy Wittenberg said the governor has narrowed the focus of the bill even tighter than its original, with only field sports added to the list of allowable low-intensity recreational activities.

“We are pleased the governor heard our concerns and is limiting this as tightly as he has,” said Wittenberg. “We can live with this.” ~~~ see Press of Atlantic City story

WTF? Who does Wittenberg work for?

Earlier in her career, Wittenberg was a lobbyist for the NJ Builders Association, so she knows exactly how the Trenton game is played.

Why does the Commission continue to get hoodwinked?

What does it take to get fired?

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Christie BPU “Thoroughly” Approves South Jersey Gas Pinelands Pipeline

December 16th, 2015 No comments

BPU issues “thorough” but dishonest approval

‘The only evidence [before BPU] is testimony of witnesses of the company.”

A Postscript to Paris

As expected, today BPU issued what may be the final approval for the South Jersey Gas Pinelands pipeline.

Here’s all you need to know about what went down this morning in Trenton – there were some surprises and flat out shocking developments:

1. Notoriety

In his introductory remarks, BPU President Mroz characterized 2 years of strong public opposition to the pipeline, from thousands of people, including a letter from 4 former Governor’s and a 7-7 deadlocked vote by the Pinelands Commission, as “a great amount of notoriety”.

I guess that makes his vote in favor of the pipeline “notorious”.

2. Ethics

In response to public comments suggesting that BPU President Mroz had a conflict of interest as a result of his former role with the NJ Energy Coalition, the State Ethics Commission reviewed the matter and determined that Mroz has no conflict and may participate in the matter.

Guess it’s like those ads for the Lottery – when it comes to ethics: “Anything can happen in Jersey”

3. Democracy Fail

In a remarkably blunt remark, BPU staff confirmed a critical point, flat out stating that public opposition played essentially no role in the BPU’s decision: and this is a verbatim quote:

‘The only evidence [before BPU] is testimony of witnesses of the company.”

Got that?

BPU conducts “quasi-judicial proceedings” – just a fancy legal term for “trial – like”.

You all know what this means, having read about or seen criminal cases on TeeVe where the cops illegally obtained evidence (e.g. no search warrant), which was thrown out by the Judge, allowing the guilty criminal to go free.

4. PPA Ignored

The Pinelands Preservation Alliance (PPA) was granted participant status in the evidentiary hearing before BPU. PPA submitted legal and technical documents in opposition to the pipeline.

South Jersey Gas lawyers objected to the PPA participation and argued it was not “evidence” but merely “public comment”.

Obviously, left unstated was that BPU agreed and basically knocked out PPA’s participation as legal evidence the BPU must consider.

Like the Judge disqualifying the illegally obtained evidence against the criminal.

But this time, BPU and SJG got to walk.

5. Wittenberg strikes again

BPU relied not only on the Certificate of Filing by Pinelands staff.

The Certificate was backed up by a more recent August 2015 letter – or letters, it was unclear if there were two – from ED Wittenberg, reiterating that the pipeline was consistent with the CMP.

Wittenberg wrote that that after she reviewed all the testimony from the BPU hearings, that the project was consistent.

The BPU staff went out of their way to be clear that they relied on the Wittenberg letter(s) regarding the CMP and Pinelands issues.

This appears to be an obvious attempt to insulate BPU’s approval from any legal challenge on the grounds of conflicts with the Pinelands Protection Act on the issue of the relationship between the Pinelands Act and the Municipal land Use Law.

It will also be used to defeat any arguments that BPU somehow usurped the role of the Pinelands Commission regarding determination of consistency with the CMP – BPU can argue Nancy did it.

Wittenberg plays dirty and has done everything possible to promote this pipeline.

6. BPU relied on Christie DEP – not Pinelands Commission – for environmental review

BPU noted that they “had early meetings with the company (SJG)” to review the alternative pipeline routes and relied on the DEP – not the Pinelands Commission – to review and approve the company’s selection of the pipeline route, based on environmental considerations.

BPU’s role in review and selection of the route was limited to safety and cost.

7. Mroz is intellectually dishonest – “thoroughly” cherry picks the evidence and ignores key climate concerns

After the vote approving the project, BPU President Mroz took the unusual step to read a lengthy prepared statement about his rationale for voting in favor of the project.

I won’t go into the details, all of which have been mentioned before, but will simply observe that Mroz cherry picked his “evidence” and his “public comment” and that he complete ignored the issue of climate change, social costs of carbon, and significant risks of stranded assets borne by ratepayers.

That all folks – my sense, but this was not made clear, is that the pipeline has all of the approvals necessary to begin construction (aside from perhaps minor construction permits, like road opening, etc).

BPU gives RC Cape May (BL England owner) and South Jersey Gas a big Christmas present.

Send lawyers, guns and money – the shit has hit the fan.

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Christie BPU Slated To Issue Key Approval For Pinelands Pipeline Tomorrow

December 15th, 2015 No comments

South Jersey Gas petition would preempt local land use reviews

Local preemption would vest sole review over Pines pipeline with BPU

Legislators asked to intervene, conduct oversight, or veto BPU decision

At the last minute, in the wake of the Paris climate accord and a week before Christmas, the Christie Board of Public Utilities (BPU) put the South Jersey Gas Pinelands pipeline on the Agenda for tomorrow’s BPU public hearing:

  1. Docket No. GO13111049 – In the Matter of the Petition of South Jersey Gas Company for a Determination Pursuant to the Provisions of N.J.S.A. 40:55D-19.

Should BPU grant SJG’s petition, two things would happen:

1) local governments would be preempted from any reviews under local planning and zoning laws; and

2) the pro-gas BPU, who has already issued 3 Orders approving various aspects of the SJG pipeline, would be the agency to review the pipeline for compliance with the Pinelands Comprehensive Management Plan (CMP).

Repeat: BPU, not the independent, legislatively authorized, and technically qualified Pinelands Commission, would review, determine compliance, and vote to approve or deny the SJG Pinelands pipeline under the CMP.

This is LEGALLY ABSURD.

To make matters even worse, there is no opportunity for the public to comment at tomorrow’s BPU meeting.

So, as a last ditch effort to derail this monstrous decision by BPU, I appealed to Senator Lesniak, who has opposed the pipeline and Senate Environment Committee Chairman Bob Smith.

I’ve requested a legal opinion by the Office of Legislative Services (OLS) regarding the scope of their Constitutional power to veto Executive Branch decisions and to hold legislative oversight hearings of BPU’s decision.

The BPU’s decision to preempt local MLUL powers has statewide implications and the preemption in the context of there Pinelands Act is a major prededential decision virtually certain to face legal challenge.

Dear Senators Smith and Lesniak:

As you know, the NJ Constitution’s  Article V, section IV, paragraph 6 power applies to executive branch rule making (text below).

Has OLS considered the application of this Legislative power to actions by the Board of Public Utilities (BPU)? Could BPU decisions be construed as “rules” within the meaning of this Article?

Tomorrow, the BPU is scheduled to consider a petition, filed by South Jersey Gas for a Determination Pursuant to the Provisions of N.J.S.A. 40:55D-19 – preemption of municipal land use review powers under the MLUL.

This is the Pinelands pipeline – because the Pinelands Commission issued a “Certificate of Filing”, should BPU approve this petition by SJG then BPU would have dispositive final approval powers over the pipeline, subject ONLY to the STAFF review by the Pinelands Commission, not the vote of the full Commission.

Is the BPU’s determination in this matter subject to Legislative oversight?

Is the BPU’s determination in this matter subject to Legislative veto pursuant to  Article V, section IV, paragraph 6 powers?

We urge your immediate attention to this matter,

Respectfully,

Bill Wolfe

6.   No rule or regulation made by any department, officer, agency or authority of this state, except such as relates to the organization or internal management of the State government or a part thereof, shall take effect until it is filed either with the Secretary of State or in such other manner as may be provided by law.  The Legislature shall provide for the prompt publication of such rules and regulations.  The Legislature may review any rule or regulation to determine if the rule or regulation is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement.  Upon a finding that an existing or proposed rule or regulation is not consistent with legislative intent, the Legislature shall transmit this finding in the form of a concurrent resolution to the Governor and the head of the Executive Branch agency which promulgated, or plans to promulgate, the rule or regulation.  The agency shall have 30 days to amend or withdraw the existing or proposed rule or regulation.  If the agency does not amend or withdraw the existing or proposed rule or regulation, the Legislature may invalidate that rule or regulation, in whole or in part, or may prohibit that proposed rule or regulation, in whole or in part, from taking effect by a vote of a majority of the authorized membership of each House in favor of a concurrent resolution providing for invalidation or prohibition, as the case may be, of the rule or regulation.  This vote shall not take place until at least 20 calendar days after the placing on the desks of the members of each House of the Legislature in open meeting of the transcript of a public hearing held by either House on the invalidation or prohibition of the rule or regulation.

[Update – close of business, 5 pm:

I sent the Lesniak/Smith letter to PPA, Sierra Club, Environment NJ, and Food and Water Watch this morning asking for support.

Didn’t get the respect of a reply, except from Lena of FWW.

I think they all just are afraid to be associated with my name – the Yes Men stunt was probably the last straw.

Cowards.

But noted that PPA did send out an alert to their members, but with no mention of any effort to lobby legislators.

We have argued that the BPU cannot waive the duly-adopted and certified municipal land use provisions which are authorized and required by the National Parks and Recreation Act of 1979, the New Jersey Pinelands Protection Act, and the Pinelands Comprehensive Management Plan (CMP).  Because the ordinances in question are required by Pinelands regulations, they are not subject to waiver via the Municipal Land Use Law.  Where there is a conflict, the Pinelands CMP requirements override the Municipal Law Use Law.

 

[Update #2 – both Sierra Club and PPA have effusively and publicly praised Senator Lesniak for his opposition to the pipeline, so why wouldn’t they publicly call on him now for support?

PPA:

Even worse than the hastily called Judiciary Committee meeting is the fact that Senate President Sweeney chose to replace a committee member, Senator Lesniak (who was vacationing), with Senator Van Drew. Senator Lesniak has been an outspoken advocate against the pipeline and the nomination of Robert Barr. Senator Van Drew, as mentioned above, is an outspoken supporter of the pipeline. Senator Lesniak tried to return in time for the vote but by then he had already be replace by Senator Van Drew and it was Senator Van Drew’s vote that passed Barr out of the Judiciary Committee.

Sierra Club:

“This is not just about the pipeline, that’s just one issue, but the future of the Pinelands in South Jersey,” added Jeff Tittel, Director of the New Jersey Sierra Club, who said he’d received a letter from Lesniak saying he supports Jackson’s work on the commission and continues to support him.

More from Sierra Club, who suggested a “purge”:

Sen. Raymond Lesniak, D-Union, an opponent of the pipeline, was absent from the Tuesday vote. Sweeney replaced him with project proponent Sen. Jeff Van Drew, D-Cape May.

Sweeney said the change was routine.

“Lesniak had told us he wasn’t coming so we substituted for him. If he really wanted to come, he could have been there, but it wouldn’t have changed the outcome,’’ Sweeney said.

Jeff Tittel, state director of the Sierra Club, said Barr taking the place of Robert Jackson, who was not reappointed after opposing the pipeline, demonstrated that “the governor is trying to get rid of all the commissioners who opposed the pipeline and this is part of that purge.’’

They even generated a favorable Star Ledger editorial praising Lesniak:

How did Barr clear the hurdle this time? Sweeney got curiously lucky that Sen. Raymond Lesniak (D-Union) happened to be late for the vote, so his spot on the committee was filled by Sen. Jeff Van Drew (D-Cape May).

Unlike Lesniak, Van Drew supports the pipeline, which will run 22 miles — mostly through the forest and on the shoulder of Route 49 – and feed natural gas to the B.L. England power plant in upper Cape May County.

Lesniak has gotten a lot of mileage out of his Pinelands pipeline opposition – he should be called on and deliver help when crunch times like BPU’s vote come along.

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The Christie DEP Is Trying To Force Sewers and Dense Development Into Pinelands Hamlets and Villages

May 13th, 2015 No comments

DEP Proposal Would Add 13,000 Acres of New Sewer Service Areas In Pinelands

DEP Waived Detailed Water Quality Planning & Environmental Review Requirements

Biggest Sewer/Land Use Battle Since CAFRA Incorporated State Plan Centers

[CORRECTION BELOW]

The NJ Department of Environmental Protection (DEP) held a public hearing today on a DEP proposal to unilaterally amend  the Atlantic County, Cape May County, Lower Delaware, Ocean County, and Tri-County Water Quality Management Plans (WQMPs).

I was surprised by the sparse public turnout, but representatives of Save Barnegat Bay, the Pinelands Preservation Alliance, Sierra Club, myself, and two local residents testified strongly in opposition to the DEP’s proposal. The public comment period closes in 15 days, so it is critical that you get your comments to DEP (see this for details at bottom).

I first learned and wrote briefly about this on April 25, 2015, when Fred Akers – who was absent today – raised the issue.

Save Barnegat Bay noted that the proposal would add thousands of acres of new sewer service areas in the Barnegat Bay watershed, promoting development and new pollution loadings that would push the Bay towards ecological collapse.

Promoting development and the impervious surface and new pollutant loads all that new development brings to the headwaters of Bay tributaries flat out contradicts Governor Christie’s claims to restore declining water quality in the Bay and makes a mockery of the Gov.’s “10 Point Management Plan”.

PPA objected to DEP supporting the sewering of Pinelands Villages noting that sewering invites a development density and pattern that is incompatible with the design, historical character, and culture of Pinelands Villages. PPA also noted that the DEP proposal treats  all Villages the same, which is in conflict with the Pinelands Comprehensive Management Plan (CMP) which recognizes the variability and historic and cultural attributes and design values of each unique Pinelands Village.

[CORRECTION – I originally wrote that PPA failed to mount a strong opposition – I was dead wrong! I mistakenly interpreted a Pinelands Commission document on the MOU for a PPA document!  My apologies to PPA!!!! See PPA’s critique here.]

A landowner and Vineland resident, Mark Demitroff, raised 3 strong objections: 1)  the proposal would allow sewers in Pinelands Forest Areas – a violation of the CMP – and provided details maps and technical information to back that up; 2) a Pinelands staffer who worked on the proposal had a conflict of interest because he worked for a consulting firm Highbridge Group, and thus “worked for the same entities  he regulates in violation of NJ Conflcits of Interest Law, NJSA 52:13D-16; and 3) a 1999 MOA designated most Pinelands Villages as Hamlets and they do not qualify for sewer service.

I blasted the proposal as “breathtaking and brazen” – harking back to the debate 20 years ago on how DEP implemented the State Plan growth areas in the CAFRA regulatory program – and built on a legally flawed foundation.

  • I) Basis and Land Use and Environmental Impacts of the Proposal

According to the public notice, the DEP initiative is based on a MOU between DEP and the Pinelands Commission:

In recognition of the nature and scope of the New Jersey Pinelands Commission’s (“Commission”) oversight and regulation of land use and development within the Pinelands Area, and for purposes of implementing the Department’s WQM Planning rules at N.J.A.C. 7:15, the Department and the Commission executed a Memorandum of Understanding (“MOU”), dated April 9, 2012, to establish a framework pursuant to which the Department’s WQM Planning rules will be administered in the Pinelands Areas. The proposed amendments will modify the SSA delineation in portions of the counties within the Pinelands Areas in order to be consistent with the Pinelands Comprehensive Management Plan (CMP). For consistency with the CMP, the Department deems all lands located within a Pinelands Village, Pinelands Town, Regional Growth Area, substantially developed portions of a Military and Federal Installation Area, and any other area designated by the Commission for the development of centralized waste water treatment and collection facilities to either address a public health problem in accordance with N.J.A.C. 7:50-6.84(a)2 or to accommodate development activities by governmental entities in accordance with an intergovernmental memorandum of agreement executed pursuant to N.J.A.C. 7:50-4.52(c), to be within SSA.

By a waive of DEP’s regulatory wand, the DEP would exempt the Pinelands Commission from compliance with detailed requirements of the DEP’s Water Quality Management Planning rules, NJAC 7:15.

[Clarification – Technically, DEP does not exempt the Pinelands Commission from WQMP requirements because the Counties are the WQMP planning entities responsible for this work. DEP relies on the Pinelands CMP growth area designations which allow sewer service under the CMP. Please keep this in mind throughout this post.]

But just because the Pinelands CMP designates certain areas for development and finds sewers an allowable use does not mean that DEP should blindly rubber stamp that CMP land use policy. DEP has other water resource scientific and regulatory obligations under the Clean Water Act.

Just because the CMP designates an area for growth does not necessarily mean that sewers are compatible with those communities.

The DEP WQMP rules require a build out analysis to determine whether there is sufficient wastewater treatment infrastructure to convey and treat the wastewater; or whether there is sufficient and sustainable source of water supply to serve all the development in the SSA; or if existing surface and ground water quality would be degraded; or if critical habitat for threatened or endangered species would be destroyed.

The Pinelands CMP designation did not address any of these issues, which are required to be addressed under the DEP’s WQMP rules.

Instead, DEP exempted the Pinelands Commission from all these – and other – WQM planning, environmental review, and technical requirements.

The DEP proposal would expand new sewer service areas into over 13,000 acres:

The effect of these changes will be that the new mapping will exactly “match” the boundary edges of the County FWSA maps with the Commission’s maps. These proposed changes would result in a total of 13,003 acres being added into SSA throughout the affected counties, and the removal of 1,070 acres from SSA, as discussed below.

But the DEP proposal does not tell the public how many  new development units would be built in those sewer service areas, or how much new impervious surfaces would be created, or how much the wastewater flow would be generated by that development, or whether existing infrastructure can manage that wastewater flow, or whether there is adequate water supply to serve that new development or what the pollutant loadings would be and whether existing surface and groundwater quality would be degraded.

Amazing.

But it gets worse – not only did DEP waive detailed planning and environmental review requirements, they exempted the Pinelands Commission from complying with DEP WQMP rules that require that “environmentally sensitive areas” (ESA’s)  be removed from any sewer service area:

The boundaries of these areas are those specified in geographic information system coverage provided by the Commission and may include environmentally sensitive areas (“ESAs”) as described in N.J.A.C. 7:15-5.24(b). In recognition, however, of the Commission’s oversight and regulation in the Pinelands Areas, the Department shall not require the removal of ESAs from SSA in these areas. 

The DEP WQMP rules define ESA’s as:

“Environmentally sensitive areas” means those areas identified in a Statewide or areawide WQM plan as land areas possessing characteristics or features which are important to the maintenance or improvement of water quality, or to the conservation of the natural resources of the State. Environmentally sensitive areas include, but are not limited to, areas mapped as endangered or threatened wildlife species habitat on the Department’s Landscape Maps of Habitat for Endangered, Threatened or Other Priority Species, Natural Heritage Priority Sites, wetlands and riparian zones.

Remarkable. Brazen.

  • II) DEP Proposal Based On Illegal MOA – Harkens Back to the CAFRA State Plan Debate

The DEP hearing officer, in his introductory remarks today, noted that the proposal was:

initiated by the DEP

That is a direct quote.

The DEP public notice for today’s hearing explains the origin of the proposal as a MOU between DEP and the Pinelands Commission:

the Department and the Commission executed a Memorandum of Understanding (“MOU”), dated April 9, 2012, to establish a framework pursuant to which the Department’s WQM Planning rules will be administered in the Pinelands Areas.

Here is a copy of the MOU.

There are 2 crucial provisions to note, which I discussed briefly above. DEP agreed to the following:

MOU

As a matter of policy, it makes no sense for DEP to exempt the Pinelands Commission from detailed WQMP planning requirements under the assumption that the CMP is equivalent to the DEP WQMP.

Similarly, is makes no sense for DEP to exempt the Pinelands Commission from WQMP rules that require deletion of ESA’s from sewer service areas under the assumption that the CMP adequately protects those ESA’s. 

But there are more than policy problems with the approach of relying on the MOU as a basis for DEP’s rule proposal.

As I noted in my testimony today:

1) the DEP proposal and the DEP/Pinelands Commission MOU lack legislative authorization; and

2) the MOU constitutes “rule making” in the absence of compliance with rule making procedures and thus violates the rule making requirements established by NJ Supreme Court in the 1984 “Metromedia” decision.

Let’s take those issues up briefly.

  • Legislative authority

The purpose of the DEP proposal is to coordinate the Pinelands Commission’s land use CMP with the DEP Water Quality Management Planning program’s regulatory  requirements under the federal Clean Water Act.

This is a very big deal: trying to reconcile a major regional land use scheme with a Statewide DEP water quality program.

There is no federal or NJ statute that authorizes and directs the DEP or the Pinelands Commission to do this.

In contrast, back in 1993, the Legislature specifically authorized and directed DEP to accomplish a very similar objective.

As shore growth proliferated, it became obvious that there were multiple conflicts between the DEP CAFRA regulatory permitting scheme for the coastal zone and the State Development and Redevelopment (SDRP) land use planning scheme.

To reconcile those conflicts, in 1993, the Legislature passed a law directly DEP to “closely coordinate” the State Plan and the CAFRA regulations.

Based upon that legislative authorization, DEP enacted regulations that streamlined CAFRA requirements in State Plan designated centers, based on various levels of imperious cover.

There was a major political battle between environmental groups, DEP and the development community on how DEP “closely coordinated” or integrated the State Plan in the CAFRA regulatory program.

In contrast, DEP is now trying to do a very similar thing by integrating the Pinelands CMP growth areas in the DEP Water Quality Management Planning Rules, but DEP is doing so with absolutely no legislative authorization.

The Christie DEP has unilaterally initiated the proposal, and in doing so, greatly over-reached given DEP’s historic WQMP role, which has been passive, i.e. to review and approve county and regional and site specific WQMP’s – not to initiate and impose them.

[* The DEP over-reach is similar to the Campbell DEP’s over-reach under “The Big Map” initiative. In contrast, the Christie DEP over-reach is designed to PROMOTE development, while the Campbell over-reach was designed to BETTER REGULATE development.]

But the legal flaws are as bad or even worse that the policy and the institutional outrage.

  • The MOU Constitutes a Rule

As DEP’s public notice states, the proposal is based on the MOU between DEP and the Pinelands Commission.

The MOU attempts to insulate the MOU from legal challenge, by this blatantly false claim:

MOU2

Of course the MOU effectively “changes the substantive requirements” – most notably by DEP waiving the extensive technical requirements to designate sewer service areas and the requirements to eliminate environmentally sensitive lands from sewer service areas.

The MOU “framework” was never subject to public note, public comment, and public hearing requirements that the NJ Administrative Procedures Act requires for rulemaking.

In the MOU, the DEP made substantive concessions to the Pinelands Commission and exempted CMP designated lands from DEP WQMP regulatory requirements that are specifically mentioned in the MOU

The MOU is then presented as the basis for the DEP rule WQMP proposal.

Therefore, legally, the MOU amounts to “rule making” as the NJ Supreme Court defined that in the 1984 Metromedia decision.

The Metromedia decision has forms the doctrine of what factors determine whether an Executive Brach agency – like DEP or the Pinelands Commission – is engaged in rulemkaing and must follow rulemikng procedures under the Adminsitrative Procedures Act.

Here is the heart of the decision – and it illustrates exactly why the MOU was in fact a rule and therefore the MOU and the DEP rule proposal are legally flawed:

Similarly, an agency determination can be regarded as a “rule” when it effects a material change in existing law. See Crema, supra, 94 N.J. at 302; K.C. Davis, Administrative Law Treatise § 7:25 at 186 (2d ed. Supp. 1982); Ford Motor Co. v. Fed. Trade Comm’n, 673 F.2d 1008, 1009 (9th Cir.1981), cert. den., 459 U.S. 999, 103 S.Ct. 358, 74 L.Ed.2d 394 (1982) (an agency determination that changes existing law and has widespread application must be addressed by rule-making and not adjudication). This feature relates not only to fairness to the individual party actually before the agency but to other persons as well. When an agency’s determination alters the status quo, persons who are intended to be reached by the finding, and those who will be affected by its future application, should have the opportunity to be heard and to participate in the formulation of the ultimate determination. See Bergen County Pines Hosp., supra,96 N.J. at 469; Crema, supra, 94 N.J. at 303; Boller Beverages, Inc., supra, 38 N.J. at 151.

We have also recognized that the factfinding process that characterizes rule-making is much more flexible and expansive than that governing quasi-judicial adjudication. Where the subject matter of the inquiry reaches concerns that transcend those of the individual litigants and implicate matters of general administrative policy, rule-making procedures should be invoked. See Dougherty v. Dept. of Human Servs., 91 N.J. 1(1982); Texter v. Dept. of Human Servs., 88 N.J. 376 (1982). The procedural requirements for the passage of rules are related to the underlying need for general fairness and decisional soundness that should surround the ultimate agency determination. See Crema, supra, 94 N.J. 286. These procedures call for public notice of the anticipated action, broad participation of interested persons, presentation of the views of the public, the receipt of general relevant information, the admission of evidence without regard to conventional rules of evidential admissibility, and the opportunity for continuing comment on the proposed agency action before a final determination. See N.J.S.A. 52:14B-4.

We can synthesize from this authority that an agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process. Such a conclusion would be warranted if it appears that the agency determination, in many or most of the following circumstances, (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy. These relevant factors can, either singly or in combination, determine in a given case whether the essential agency action must be rendered through rule-making or adjudication.

Send lawyers, guns, and money – the shit has hit the fan!

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