Still by Denise Conner
Policy Notes: March 2025
Pinelands Commission discusses procedures for identifying and protecting threatened & endangered species, but recommends no changes.
Policy Notes are designed to update the public on the activities of the Pinelands Commission, which have been summarized by Pinelands Preservation Alliance staff who attend all public meetings of the Commission.
Imagine that you own property in the Pinelands, and want to build a small cluster of home. NJ state government records indicate that there may be rare snakes on your property, and neighbors have reported seeing the snakes nearby. You know that your planned development will not be allowed to damage any critical habitat, but it’s not immediately clear to you where this habitat is—or what even counts as critical habitat, in the first place. What happens now?
Developers must apply to the New Jersey Pinelands Commission (PC), which will review development plans and determine if they are compatible with ecological protections laid out in the Pinelands Comprehensive Management Plan (CMP).
To ensure the survival of rare animals, the PC works to protect the specific patches of land that serve important functions for the animal. For an animal like the northern pine snake, this includes places used for activities like denning, overwintering, and nesting. This does not include every piece of land that the snake may traverse, but does include high-activity zones. Similarly, in the case of plants, the PC does not require that every individual stem, branch, and twig of a type of plant be protected—but development cannot destroy the local population. While science-based, determining critical habitat for T&E animals and what constitutes a sustainable local population for a plant is subjective and debated.
When there is sufficient concern that a population of T&E species could be impacted by a development project or other activities in the Pinelands, the PC may require the developer to do a survey of their land. This is typically carried out by a hired consultant. The CMP lacks strict regulations on survey content or qualifications, but recommended protocols include habitat descriptions, species life cycle data, survey techniques (e.g., telemetry, drift fences), maps, and seasonal considerations. These surveys must provide sufficient data for a defensible conclusion, often consulting NJDEP and the U.S. Fish & Wildlife Service.
Based on the findings of surveys, the PC may limit the size of the development that can fit on the land or require that the footprint be adjusted to avoid critical habitat. The PC may also impose development time restrictions to avoid building during times of the year that could be disruptive to sensitive species found in nearby critical habitat. Legal challenges have arisen, but the Commission generally aims for reasonable, science-backed protections.
When are T&E Surveys Required?
Not every development in the Pinelands requires a T&E survey. The CMP does not specify how surveys should be conducted, so PC staff use discretion in determining when a survey is necessary. Given that a full snake survey can cost around $70,000, this decision is made carefully.
Should we only be checking properties for T&E species on a case-by-case basis or should an alternative approach be considered? At the February 28 meeting of the Pinelands Commission’s CMP Policy & Implementation committee, two extreme alternatives were discussed:
- Always requiring surveys for all developments, or for those above a certain size.
- Never requiring surveys, instead relying on CMP management area designations that would automatically protect most wildlife in more conserved areas like Preservation and Forest Areas.
At present, PC staff use their discretion to forge a path between these two extremes. This results in a minority of applications actually being required to perform surveys: an estimated 11% of new applications to the Pinelands Commission in 2023 and 2024 were required to complete surveys for T&E species.
In an ideal world, surveys would always be required, but PPA believes the process can be greatly improved even if surveys aren’t always required. The real conflicts tend to arise when considering who is performing these surveys.
Conflict of Interest? Depends on who is hiring who.
When the Pinelands Commission tells a developer to perform surveys for T&E species, the developer will typically hire the consultant of their choosing to actually perform the surveys. There are many such consultants and consulting companies that offer their expertise for this purpose. If the consultant’s surveys come up empty, then the developer essentially has free-reign to build according to what the property zoning allows. However, if the consultant does find T&E species, then the developer’s plans may become complicated. Who would the corporation hire: the talented surveyor who can find exactly what’s there, or the surveyor who does not and always comes back with the all-clear?
This system creates a perverse incentive that rewards surveyors for not finding rare species. The incentive for the corporation is to hire the firm with the least amount of skills and expertise. The consultant who doesn’t find any T&E species gets rehired for the next job, while the consultant who can find the proverbial needle in a haystack is avoided. Disagreements over recent applications to the Commission, such as a plan to build a housing development in the Pole Bridge Forest, have stirred concerns over the economic incentives of our current arrangement. PPA believes that it is time to make a change.
At the February 28 meeting of the Pinelands Commission’s CMP Policy & Implementation committee, the Commission discussed potential methods for identifying qualified personnel to conduct T&E surveys, considering three options:
- Maintaining a List of Qualified Consultants
- Would require defining qualifications for over 100 T&E species and amending the CMP.
- Would necessitate an appeal process for consultants denied inclusion.
- Raises concerns about the Commission appearing to endorse consultant conclusions.
- Pinelands Commission Assigning Consultants
- Would involve establishing a fee structure and payment system.
- Might create disputes between applicants and assigned consultants.
- Could cause delays if consultants are already booked.
- Case-by-Case Guidance and Staff Review (Current Approach)
- Staff discretion ensures flexibility as scientific understanding evolves.
- Applicants are advised but not assigned consultants.
- Staff confirm if a consultant has worked with the Commission before but do not explicitly recommend them.
Commissioners debated the best approach, recognizing that different projects require different levels of scrutiny. While independent Commission-assigned consultants or in-house staff surveys could improve consistency, concerns about bias and administrative challenges remain.
Commissioner Irick did advocate for the Commission to provide more up-front guidance to help applicants choose a qualified consultant, with the logic that this would save much effort and hand-holding down the line. Commissioner Avery highlighted the difficulty of creating a defensible list of qualified consultants, given that some of the best experts are essentially self-taught, and do not have traditional qualifications. The discussion quickly turned to all of the possible lawsuits that could result from such an approach.
Based on this discussion, Commissioners and staff seemed content to not change anything, and made no official recommendations for action to the full Commission. Although plenty of attention was paid to the logistics of how difficult it would be to change the Commission’s approach, the discussion glazed over why members of the public and PPA want to see changes made in the first place.