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

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:

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:

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!