DEP Requested That I Quietly Withdraw Rule Petition On DEP’s Exemption Of Logging Public Lands In NJ Highlands Forests
The Murphy DEP just asked that I withdraw my rule petition regarding DEP’s interpretation of the Highlands Act’s exemption of certain forestry practices.
According to DEP, the DEP regulations have already been amended to delete the bracketed phrase “[public lands]” that I objected to.
Assuming they could pull the regulatory wool over my eyes, the Director Of DEP’s Office of Legal Affairs emailed me today with this request: (emphasis mine)
The current version of this rule reads as such: “7. Any activity conducted in accordance with an approved woodland management plan issued pursuant to the Farmland Assessment Act, N.J.S.A. 54:4-23.3, or the normal harvesting of forest products in accordance with a forest management plan approved by the State Forester.”
Since the rule change you have requested removing “for public lands” has taken place, are you amenable to withdrawing your rule petition? Thank you.
[Full DEP request provided upon request.]
In DEP’s request, they actually made the ambiguity I seek to clarify worse (e.g. by saying that private landowners could prepare forest management plans, thereby ignoring the public land question and ironically further implying that the language of the exemption is intended for and is limited to PRIVATE lands.
If I were to withdraw my rule petition, this whole set of issues of how DEP manages public forests would be swept under the rug:
- DEP would not be required to publish my rule petition in the NJ Register;
- DEP would not be required to respond and publish their response in the NJ Register;
- the public would remain completely unaware of these important issues;
- DEP would remain unaccountable; and
- The flawed status quo in DEP forestry would be allowed to remain.
Of course, this would defeat the whole reason why I submitted the rule petition, which was to force DEP to publicly defend their pro logging policies – which are strongly opposed by the public – and generate a basis and some momentum for long overdue reforms.
Worse, DEP’s convoluted and erroneous defense of the current regulatory exemption raised additional concerns and created additional problems.
Here is my reply to DEP, which I hope makes that clear:
Dear Ms. Abatemarco: Thank you for your response. You request that I withdraw my rule petition.
The following communication may be considered by the Department, but is an informal communication outside the scope of my petition.
As you know, my rule petition requested 2 specific regulatory changes. Your reply is limited in scope to my first request, but not my second, which was:
“2) amend NJAC 7:38-2.3(a)7. to restrict the scope of Exemption #7 of the Highlands Act to privately owned lands.”
Given the failure to address my second request, I am not interested in withdrawing the rule petition.
Furthermore, in my view, the Department erred in interpreting the text of exemption #7 in the Highlands Act. Specifically, I don’t believe that the language itself and the legislative intent was to categorically exempt commercial logging on public lands from the Act.
Your reply not only perpetuates that flawed interpretation, but adds a new layer of confusion and misinterpretation by asserting that the public lands exemption was intended for and is governed by the “Federal Forest Stewardship Program”. You wrote:
“A forest management plan must be approved by the State Forester and is generally based on guidelines associated with the Federal Forest Stewardship Program”
But the Department reviews and approves forest management plans based on State DEP programs and DEP’s discretion.
As you may know, the Department has a “Forestry and Wetlands Best Management Practices Manual” (1995) that governs forest management plans, see:
https://www.nj.gov/dep/parksandforests/forest/docs/nj_bmp_manual1995.pdf
The science supporting that BMP is over 30 years old. It is far broader in scope than the “Federal Forest Stewardship Program”. The activities exempted are far broader in scope than the Highlands Act. The BMP is seriously flawed and does not address priority policy and scientific issues, like carbon storage and sequestration and afforestation and water quality.
Furthermore, the Department adopted a “Forest Action Plan” (2021), see:
https://www.nj.gov/dep/parksandforests/forest/njsfap/
That plan guides the state forester in review and approval of forest management plans. According to the US Forest Service (personal communication on NJ Highlands Council grant application), the USFS landscape restoration grant guidelines defer to that Plan. That Plan is also flawed (discussion far beyond the scope of this email).
The Department also recently adopted the “Natural and Working Lands Strategy” that includes forest management policies, see:
https://dep.nj.gov/climatechange/mitigation/nwls/
Finally, Senate Environment Committee Chairman Bob Smith created and charged a legislative forestry Task Force. The Task Force issued its recommendations Report, with a dissenting Report, last year, “NJ Forest Stewardship Task Force Report”, see:
https://drive.google.com/file/d/1bNtRGmjM58uXwo1BUY5anfbelbmy8tAq/view
As such, new forestry policy and legislation is now being considered based on that Report as well.
The Department’s formal response to my petition and publication in the NJ Register would inform and aid the deliberations of the public and the legislature, particularly on the question of whether forestry is exempt from the Highlands Act and if so, whether additional goals, objectives, policies, regulatory standards, safeguards, and public participation are warranted.
Accordingly, I am copying Senator Smith, Highlands Council Executive Director Spinelli, and Commissioner LaTourette on this brief reply.
Again, I decline your request to withdraw the petition.
Respectfully,
Bill Wolfe