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DEP Rule Proposal Based On Legally Flawed Agreement with Pinelands Commission

DEP Attempts to Ratify Arbitrary Policy Decision Dictated Without Public Review

At the end of yesterday’s wide ranging and lengthy post on DEP’s plans for Pinelands sewers, I argued that the DEP Memorandum of Understanding (MOU) with the Pinelands Commission was illegal because it was a “rule” that was not adopted in accordance with rule making procedures.

The MOU deceptively calls itself a “framework”, but it made major policy and regulatory decisions, including:

• DEP “deemed” Pinelands CMP designated growth areas as sewer service areas without detailed planning required under DEP Water Quality Management Planning regulations, NJAC 7: 15 – 1 et seq.;
• DEP did not enforce WQMP requirements that environmentally sensitive  lands be eliminated from sewer service areas; and
• DEP  unilaterally initiated and conducted planning on behalf of the Counties, a deviation from prior practice, where Counties are the WQMP planning entities.

Once those major decisions were made, DEP and Pinelands staff merely engaged in a tedious technical GIS mapping exercise of reconciling CMP maps with DEP SSA maps.

That exercise is what produced the “WQMP plan amendments” that were the subject of yesterday’s public hearing. It was all a sham, posed after the fact, an attempt to ratify arbitrary dictates from Trenton.

This exercise by DEP and Commission staff was not land use planning required by the CMP or wastewater planning required by DEP WQMP rules  – it was a rote technical exercise. As a result, the public is not able to review facts and planning analyses that formed the basis of the original policy decisions made in the “framework” MOU.

All those decisions were “deemed” by DEP BEFORE technical review or public comment.

I was told, by a reliable professional source, that the MOU was stealthed before the Pinelands Commission: it was not listed on the meeting agenda, it was not in the Commissioners’ meeting packet, and it handed to the Commission by Nancy Wittenberg and approved on the same day without review by the Commission or the public.

That is bad enough – but there are fatal legal flaws in the MOU – which is the basis of DEP’s WQMP rule proposal – that I want to drill down on today.

This is a complex legal issue, but it goes to the heart of democracy and how we govern – including issues like whether the public is involved in major Executive branch decisions by government, whether government decisions are transparent and based on evidence, and whether people have opportunities to challenge government actions.

The general principle is that when executive branch agencies craft policies or regulations to implement laws in ways that establish requirements that significantly impact people or economic interests, that government must do so by subjecting those policies to public review, through a process called rule-making, which includes these steps: 1) propose, explain, justify, and publish the policy; 2) allow public comment and hold a public hearing; 3) respond to public comment; and 4) provide opportunity to challenge the policy in court.

Here are the factors that NJ Supreme Court’s Metromedia decision found define when a government policy is a “rule” that must be promulgated via rule making procedures:

(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.

So, let’s examine the DEP Pinelands sewer MOU in light of these 6 factors to see if it meets the definition of a “rule”.

Keep in mind that not all 6 factors must be met – just ONE triggers legal rule making requirements.

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;

The MOU applies to over 13,000 acres across the entire Pinelands region. It influences the land use and development pattern in multiple counties and communities throughout the Pinelands. It involves sewers infrastructure which could cost hundreds of millions of dollars, allow building of thousands of new homes, and increased property values and local taxes. CHECK

(2) is intended to be applied generally and uniformly to all similarly situated persons;

The essence of the MOU is that is applies uniformly to all Pinelands CMP designated growth areas and lands situated in those growth areas, with respect to sewer service. CHECK

 (3) is designed to operate only in future cases, that is, prospectively;

The MOU is about wastewater planning, which is by definition a prospective policy that applies to future conditions on the ground. CHECK

(4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; 

The MOU prescribed at least two new legal standards:

a) that lands designated for growth under the CMP adopted under the Pinelands Protection Act are “deemed” by DEP as sewer service areas under the WQMP regulations and Water Quality Management Act; and

b) that lands designated for growth under the CMP adopted under the Pinelands Protection Act and “deemed” sewer service areas are not required to eliminate “environmentally sensitive areas” from from the SSA’s.

These administrative determinations by DEP were not inferable from existing DEP WQMP regulations. CHECK

(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;

The MOU itself is described as a “framework” and it reflects a significant new administrative policy by DEP concerning the relationship between the Pinelands CMP and the DEP WQMP regulations.

This is a material and significant change in historic DEP policy under the WQMP rules. CHECK

6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy

The MOU refelcts DEP’s policy decision to “deem” CMP growth areas as “sewer service areas” – and to do so without a detailed compliance review of those growth areas with respect to the requirements of the WQMP regulations. The MOU also establishes a policy to waive a DEP requirement to eliminate ESA from SSA’s.

Obviously, these are regulatory policy determinations. CHECK

• Breaking Down and Summing up:

1. The MOU made substantive regulatory policy decisions that DEP and Pinelands staff complied with and later merely reflected in maps.

2. Those policy decisions constitute a rule, as defined in the NJ Supreme Court’s Metromedia decision;

3. The MOU was not promulgated in accordance with rule making procedures;

4. The MOU “framework” policies were later incorporated – verbatim, and without technical analysis – in a DEP rule proposal. The rule proposal came 3 years after the actual policy decision was made, rendering the rule proposal a sham.

5. Conclusion: The DEP’s proposed rule is fatally flawed – the DEP can’t after the fact comply with rulemaking requirements that should have been followed when the original huge and binding regulatory policy decisions were made in the MOU.

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!

Assemblyman McKeon Drills Down on Exxon deal

Martin Spins and Hides Under the AG’s Skirt

Martin Falsely Attacks Rutgers Barnegat Bay Study

Just a few quick points on yesterday’s Assembly Budget Committee hearing on the Christie DEP’s FY’16 proposed budget (listen here 10 am).

First of all, the focus of the Committee was sharper and the questions were more substantive and critical than the Senate’s last week.

• Climate Change, Adaptation, and Renewable Energy Failures Ignored

The Senate did a better job criticizing the Christie Administration’s across the board abdication on dealing with climate change, adaptation, and renewable energy.

Given the importance of the issues and the miserable performance by the Christie Administration, that is really shocking and unacceptable.

• McKeon is all over Exxon and Lax Enforcement

Assemblyman McKeon, in particular, did a fine job and led the charge.

He began by pinning Martin down on the Christie’s failure to aggressively enforce the NRD program – just 1 NRD claim filed in 6 years, compared with 161 filed in the prior 6 years.

McKeon asked detailed questions about the Exxon NRD deal and lax inspection and enforcement statistics. He came prepared, at times reading excerpts from the Exxon settlement and DEP’s own enforcement statistics. Bravo McKeon!

Martin refused to answer most of McKeon’s questions based on a sham legal excuse that litigation was still pending and he needed the AG by his side.

Martin’s performance was embarrassing. As McKeon and others have noted, the proposed settlement is now open for public comment (until June 5 – you can comment to:  ExxonMobilBaywaySettlement@DEP.NJ.Gov ). Of course Martin can talk about the proposed settlement – he already issued  a totally inappropriate press release with the AG praising it!

Martin was totally evasive about the 16 additional Exxon sites and 900 gas stations included in the agreement. McKeon also, for the first time, probed the DEP’s concessions to Exxon on any future surface water NRD recovery (I’ve written about that and the full agreement here).

Martin arrogantly dismissed public opposition, saying that most of the over 5,000 comments submitted thus far were a “form letter”.

McKeon also criticized steep 30 – 60% reductions in DEP inspections and fines since 2010. Martin had no real response to that, claiming that DEP was working to promote compliance

Read the PolitickerNJ  story for some of the details.

• Privatized Toxic Site Cleanup Program Provided $9 million Subsidy to Polluters

Adding insult to injury, we learned that, thus far, the privatized toxic site cleanup program created under the 2009 Site Remediation Reform Act has provided over $9 million in subsidies to polluters via special appropriations to DEP’s budget. Oversight fees paid by polluters have not paid the full cost of the DEP program.

DEP Commissioner Martin said that DEP oversight costs were not being paid – either because the LSRP’s failure to pay oversight costs or because there has been a reduction in oversight fees. That shifts the burden from polluters to the taxpayers.

• Democrats carry water for big corporate polluters – want DEP permit fees cut

Every year, Assembly Democrats, historically led by Lou Greenwald, read from the script handed to them by the lobbyists for the big polluters and complain about high DEP permit fees.

They do this every year and are never criticized by press or environmental groups and held accountable for it.

Yesterday, repeating that pattern, Assemblyman Burzichelli (D-Oil) and Chairman Schaer strongly criticized DEP for allegedly high pollution permit fees.

Both were carrying the water of polluters – Both legislators were taking an anti-environmental position that is championed by the Chamber of Commerce, NJ BIA, Chemistry Council, Petroleum Council et al.

The corporations want to reduce their permit fees for two reasons: 1) pure greed: increased profits; and 2) to weaken DEP and reduce DEP oversight of their operations.

Lower DEP permit fees results in fewer DEP staff and that means less regulation, weaker permits, and less monitoring, inspection and enforcement.

• DEP policy and performance criticized across the board

Commissioner Martin got specific critical questions about several DEP programs, including failure to update the Water Supply Plan, efforts to privatize and commercialize Liberty State Park, failure to adopt drinking water standards, and extensive delays in the cleanup of Barnegat Bay.

In an outrageous deception, Martin completely misrepresented scientific peer review findings of Rutgers’ Barnegat Bay study. Martin claimed that peer reviewers claimed that Rutgers’ findings “not in line with data”. That is false (read peer review comments here).

With respect to special urban issues, legislators complained that those needs were neglected by DEP, including funding for brownfields cleanup, parks, and water infrastructure.

In response, Martin made it obvious that the Christie DEP has no overall vision or plan for urban NJ, and instead is diverting funds from urban environmental programs.

• Restoration of Parks & Water Resource Programs Cut By Open Space

I don’t want to beat a dead horse here, but, based on questions, it is obvious that the Keep It Green Coalition continues to lie, spin, and mislead legislators.

NJ Spotlight also continues to follow the company (Foundation funded) line, this time, pouncing on and crafting a false narrative around Assemblyman Singleton’s slogan, calling the restoration of funds a “bait and switch”.

I am a severe Christie/Martin critic – but there was no “bait and switch”.

The Christie Administration OPPOSED the Open Space ballot question, so how could they be accused of “baiting” the voters? To be a true “bait and switch” the Christie Adminisration would have had to support the open space ballot Q. They didn’t. So there can’t be a “bait and switch”.

If Spotlight wants to use commonplace analogies, there was a “Rob Peter to pay Paul” – and it was created by the deceptive Keep It Green Coalition million dollar PR campaign that misled voters.

It is wrong to compare the restoration of $20 million in parks and water resource funds that were diverted by the open space ballot with prior HUGE $1 billion diversions of Clean Energy, landfill closure, recycling et al funds.

The prior diversions took funds earmarked for environmental programs away – the current restoration resorts funds to environmental programs that were diverted by the Open Space ballot.

Shame on Keep It Green for continued spin and lies to Legislators who don’t understand environmental programs.

The Pinelands Commission’s Policy and Implementation Committee met on Friday to discuss several matters (agenda and packet). [You can watch hearing here].

After the meeting, the new Ad Hoc Committee to reform the MOA process met for the first time. Here’s a quick summary of what went on.

1. Black Run Watershed Plan

This plan is important beyond the Black Run watershed because it will define and serve as the Commission’s model for sub-regional planning. The Commission is calling this a “pilot project”.

[What this sub-regional planning model boils down to is this: in order for the Commission to redesignate lands in a way that reduces development potential, new growth must be provided to compensate property owners, regardless of whether the development potential was “realistic” and “investment backed” and regardless of whether the new growth area is appropriate (why else waive T&E survey requirements in the new growth area? Why ignore restrictions on wastewater infrastructure in forest areas?). In this case, the existing rural development area land that would be redesignated as new forest area is environmentally constrained and would only support 70 clustered units (max.)  Yet, the new 150 acre growth area would allow 325 units! An almost 5 -1  ratio!]

Conceptually, the plan is seriously flawed because it is a trading scheme and is not driven by the Pinelands Act mandate to preserve Pinelands resources and only allow “compatible development” based upon scientific criteria and resource protection standards.

Serious flaws in the plan include:

• fails to apply environmental constraints and thereby greatly overestimates development potential of the lands targeted for preservation;
• fails to consider environmental constraints on lands targeted for development;
• waives T&E survey requirements and PDC’s for lands targeted for development;
• fails to consider water supply and wastewater infrastructure capacity or impacts;
• fails to consider impacts of development on Pinelands periphery – e.g. new growth area located adjacent to preserved forest.

Given the significance of this plan as a model and the serious flaws, I can’t understand why I am the only one who has even commented on it.

I wrote about the plan previously (see this for details).

It is a complicated plan, but it basically involves re-designation of about 4,000 acres of forest from rural development area to forest area, reducing allowable density and development potential, and creating a new 175 acre regional growth area to build some 325 units. The new growth area is designed to compensate landowners for the development potential that would be reduced by the forest area re-designation.

Last time, the plan was tabled and staff was asked to provide an additional briefing on the development of and elements of the plan.

Keep in mind that at the prior meeting, staff found that

• the current rural development designation “does not reflect the ecological value of the area”
• the current rural development designation ”continues to create unrealistic development expectations“
• a Forest Area resignation would reflect the current CMP standards for Forest Area

Yesterday, staff provided an historical overview of how the Evesham – Medford plan – which is the basis for the current plan proposed by staff – originated.

The 2006 Evesham-Medford plan was subsequently adopted by Evesham in its Master Plan and approved by the Commission via Resolution,  but it was never implemented in Evesham zoning ordinances or CMP changes. There was a brief discussion of the lack of progress in implementing the plan.

It was obvious that the Evesham- Medford plan was a response to development proposals at the time that threatened to fragment forests and degrade water quality.

Given that development pressure at the time (AKA “investment  backed expectations”), the Commission was forced to compromise and come up with a plan that allowed property owners to profit from the allowable development potential.

But that hot real estate market does not exist right now and there are no pending development applications before the Commission. The Commission is not under pressure to compromise and therefor should base any new plan on existing criteria and science, not development expectations that drove the 10 year old Evesham-Medford plan.

Commissioner Ashmum supported the plan. Commissioner Prickett noted the plan was funded by the ‘prestigious” Wm. Penn Foundation. Commissioner Galletta raised several concerns and opposed inclusion of the on-site wastewater system option to serve new development in the new designated growth area.

After a brief discussion and without public comment, the Committee approved staff’s recommended “Option 3”, but without the option for an on-site community wastewater system with about a 90,000 GPD capacity (according to Larry L, I could not find that number in the plan itself) (see staff’s presentation). That plan also would waive T&E survey requirements and Pinelands PDC credits in the new growth area.

The only wastewater option would be via a pipeline connection to Voorhees or Evesham sewer treatment plant – both not very likely and not cost effective.

Both wastewater options would be inconsistent with restrictions on wastewater infrastructure in Forest Areas. So the plan is inconsistent with the CMP! 

My sense is that the Commission thinks that there are so many barriers to development of 325 units in the newly designated growth area that it will not happen, meanwhile the forest re-designation will.

This is a dishonest game.

The plan is flawed and a lousy deal – I support option 2, which is to correct an historical error and re-designate the land as Forest area.

There is no need to “balance” this re-designation with new growth because the forested lands should never have been designated rural growth area to begin with. There is no need to “compensate” landowners because development expectations are not reasonable as a result of environmental and regulatory constraints on this land.

Those forested lands should never have originally been designated rural development area. Based on current Pinelands criteria, they meet Forest Preservation area standards.

The land development potential in the currently designated rural development area was overestimated as 325 units. However, environmental and regulatory constraints  – wetlands, stream buffers, and T&E habitat – would not allow anywhere near that amount of development. 

I criticized the plan “horse trading” not planning, because the primary objective is to create a development trading scheme to compensate landowners, not preserve Pinelands resources and allow compatible development based on existing scientific criteria of ecological value.

The next step appears to be a CMP amendment authorizing this plan as a pilot program. We’ll keep you posted.

2. Independent review of T & E surveys

There was a good discussion of flaws in existing T&S survey requirements with respect to the role of consultant’s for developers. Under current requirements, those surveys are prepared by consultants who work for the developers, raising conflict of interest and scientific bias concerns.

PPA and NJ Audubon and others are seeking to have independent experts, who report to the Commission not the developer, prepare or review T&E surveys, and have the applicant pay for those services, much like the current practice of local development reviews where developers pay into an escrow fund to support independent reviews.

Staff was criticized for working to find ways to block these reforms instead of working to make them happen. No decisions were made or commitments to future action.

3. MOA reforms – just don’t mention “South Jersey Gas pipeline”

The new Ad Hoc MOA reform Committee met for the first time.

The good news is that Chairwoman Ashmum reversed her prior prohibition on public comment.

The bad news is that Chairwoman Ashmum seems to think that these reforms can be accomplished without rule making. Here’s what transpired:

Staff provided a briefing on the origin and purpose of the MOA mechanisms. The MOA was included in a package of 1994 rule amendments. The objective was to make it easier to obtain approval for projects that conflicted with the CMP but served a public purpose. Historically, those kind of projects were not able to meet the waiver of strict compliance standards, which require demonstration of a “compelling public need” and that there be “no alternatives”.

Several members outlined their concerns and there seemed to be a consensus that the focus of reforms be on:

• provide the Commission with early involvement
• limit eligibility to public entities;
• establish better definition and restriction of “public purpose” to the Pinelands;
• extending the public comment period; and
• developing science based standards to enforce the current “equivalent protection” standard.

There was no agreement on whether “public utilities” or State entities like BPU representing a private for profit like South Jersey Gas, could be eligible for a MOA.

Commissioner Avery objected to any rule making.

Commissioner Lloyd suggested that there may be legal problems in trying to implement any new MOA scheme without adopting them procedure as a regulation.

I spoke and supported the overall objectives, but added that

1) the Commission should impose a moratorium on any consideration of any MOA’s pending adoption of new rules to strengthen current MOA regulations, like the DRBC moratorium on review of fracking applications; and

2) strongly disagreed with Chairwoman Ashum’s intent to avoid regulations – the MOA is a regulatory review procedure, so new rules are required (as Lloyd suggested).

3) I objected to the Committee’s plan to meet in closed session with Pinelands Commission staff.

The Committee seems to be bending over backwards to avoid admitting that mistakes were made during the SJG MOA and to block the public from criticizing that process or ED Wittenberg & Counselor Roth’s actions – or opening Pandora’s Box by discussing interactions with the Governor’s Office.

4. DEP addition of 13,000 acres in new sewer service areas

Fred Akers spoke during the public comment period and raised concerns about DEP’s proposed approval of County Water Quality Management Plans that would add 13,000 acres of new sewer service areas (SSA) in the Pinelands (see the DEP public notice).

Fred said he had reviewed portions of the Atlantic County maps and found cases where the DEP would allow sewers in forest and other protected areas.

Staff immediately interjected and contradicted Fred’s claims – staff said they had done detailed reviews and that all new SSA are limited to designated growth areas that allow sewers under the CMP.

Fred disagreed and urged the Commission to loook closely at the SSA maps with respect to CMP requirements.

The DEP will hold a public hearing on May 13 at the Pinelands Commission building.

I was blown away by this and the fact that  Fred had to bring the issue to light during a public comment period.

The staff never, to my knowledge, discussed this or even mentioned it as a heads up to Commissioners.

Unreal.

I spoke briefly to say that I was blindsided by this and although did not have the opportunity to look at the SSSA maps, I raised concerns about the Christie DEP’s statewide policy to increase the size of sewer service areas to promote development, including revising SSA maps to include environmentally sensitive lands that previous DEP administration’s had eliminated from SSA’s.

More to follow.

People Are Harmed By Government’s Failure to Hold Powerful Corporations Accountable

Dear NJ Lawyers:

The Bergen Record reported today about a man who lost his leg in a motorcycle accident and won a $2.5 million lawsuit because the State Department of Transportation knew about the unsafe conditions for years and failed to act or warn the public about the problems, see:

Route 23 long known as a dangerous road

Smetana’s lawsuit proved what people in northern Passaic and Bergen counties have guessed for years: The northbound section of Route 23 in West Milford is dangerous. The S-curves there, just under two miles long, were the site of 470 accidents between 2004 and 2014, according to the West Milford police.

What’s more, internal documents and emails uncovered by Smetana’s lawsuit show that transportation department officials knew about the danger since at least 2001, but did nothing to address it until after his accident. Since then, the agency has installed dozens of signs warning motorists to slow down through the curves. …

In depositions and internal documents, DOT officials including William Day, who in 2011 was acting manager of the DOT’s Bureau of Safety Programs, and Frank Basek, a maintenance crew supervisor, said they knew about dangerous conditions along the road. The department did little to fix those conditions due to its limited budget, Day said. …

The improvements did not change the fact that officials appeared to have known about Route 23’s problems years before Smetana’s accident, but did little to address them, court records show. Smetana sued on those grounds, and won.

“When hundreds and hundreds of people are getting hurt and they don’t fix it for years, it’s outrageous,” said Jack Hoyt, the attorney in Morristown who represented Smetana.

Yes, that certainly is outrageous and I am pleased that Mr. Smetana was compensated for some of the harm he suffered as a result of government’s failure to act or warn the public about known risks that were causing accidents for many years.

But Mr. Smetana’s case is hardly unique.

There are similar conditions and far worse risks present in hundreds of communities across New Jersey, where scientists and EPA/DEP regulators are aware of known risks and injuries due to the presence of toxic chemicals.

And the more troubling failures are when government failures involve the regulation of private corporations, as opposed to the far simpler case where government owns and is responsible for transportation infrastructure.

One case in particular is Pompton Lakes, where residents of approximately 450 homes have been poisoned by chemicals seeping into their basements and homes from the Dupont site.

See this timeline prepared by NJ DEP regarding who knew what and when they knew it.

The timeline was obtained by Edison Wetlands Association staff during a file review at DEP under OPRA.

I am baffled by the fact that there are no lawsuits for that assault and government’s failure to warn the residents of those homes for many years, just like the NJ DoT failed to act.

There also is potential fraud and deception involved, see: F is for Fraud

Here is an LTE to the Record that makes the point which I post here in the event that Record editors do not publish it:

Dear Editor:

Reporter Chris Maag did a fine job on your Rt. 23 story – an excellent example of real journalism

One thing I was struck by was the fact that government (DoT) knew about the problem and failed to act or warn the public about it.

Your reporters might want to talk to residents of Pompton Lakes, who are outraged by the fact that US EPA and NJ DEP knew, since 2001, of “vapor intrusion” toxic pollution migrating into their basements and not only failed to warn them about it, but actively worked with Dupont to keep the problem below the public’s radar. I have an EPA email that reveals that.

It gets worse: the residents only found out about the vapor intrusion risks AFTER they signed a settlement agreement with Dupont that surrendered their legal rights to sue Dupont.

A few months after the ink was dry on that settlement agreement, Dupont, EPA and DEP disclosed the existence of the vapor intrusion problems to residents – about 450 homes are impacted.

I guess it’s a lot easier to see the harm from an amputated leg than to observe the various cancers and other illnesses the people of Pompton Lakes have suffered due to their exposure to cancer causing chemicals seeping into their homes for decades from the Dupont site.

Where is the justice in that? Where is the lawsuit? Where is the investigative journalism?