Policy Notes: January 2023
The Commission Deliberates its Role and Makes Progress on Water Rules. ‘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.
By Heidi YehFebruary 3, 2023
Commissioner Mark Mauriello was sworn in at the January 13 meeting of the Commission, bringing the number of Commissioners up to 13. Gubernatorial nominee Jessica Sanchez has cleared the hurdle of senatorial courtesy and will soon be considered for confirmation by the NJ Senate Judiciary Committee. Gubernatorial appointee Davon McCurry recently stepped down, so Governor Murphy has the opportunity to nominate another person to the Commission. Former state Sen. Nicholas Asselta is filling the remainder of the current term for the Cumberland County seat on the Commission that Jane Jannarone recently vacated. You can see the current line-up of Commissioners on the website of the Pinelands Commission.
We must wait a little longer for the long-awaited rules that will govern the allocation of water resources from the Kirkwood-Cohansey Aquifer. During the public comment period held late last year, several representatives from the mining industry expressed their concerns about the new rules which do not make an exception for “non-consumptive” use. Commission staff have since worked with NJDEP to define what exactly non-consumptive use entails, which generally means that greater than 90% of the water is returned to its source without a significant time gap between withdrawal and recharge, or changes to the water quality. This and other changes are significant enough to merit a full re-proposal of the rules, which has caused a delay in the final adoption. Given the current projected timeline, the public can expect to see the newly proposed rules in the April 3 edition of the NJ Register, on which they can make a public comment until June 2. If no other delays occur, we can expect to see the rules adopted and published on November 6, 2023.
What power does the Pinelands Commission have, and how should it be wielded?
An application came before the commission on January 13 that seemed straightforward enough: Berkeley township was applying to cap their landfill, which had not received any waste since the mid-1980’s. While the substance of the application might not raise any eye-brows, the town’s history of non-compliance gave some commissioners reason for pause. After failing to receive the requisite votes, the application was set to be referred to the NJ Office of Administrative Law, unless the applicant agreed to an extension and reconsideration by the Commission. Following a flurry of telephone calls and a 30-minute pause in the Pinelands Commission meeting, all sides agreed to a two-week extension.
Why was there an impasse over this application? It was not the capping of the landfill itself, but rather, the opportunity that the application presented to address a bevy of other problems. Over the last few decades, Berkeley Township has made several additions and improvements to its municipal complex, such as the construction of recycling and composting facilities; all of these were done without the requisite approval of the Pinelands Commission. In total, there are 16 outstanding violations that should preclude the township from getting any new projects approved by the Pinelands Commission. Although the Commission has been aware of the violations in Berkeley Township since the 1990’s, the Commission can do little more than send sternly-worded letters to the township. The fact that these letters have been ignored for three decades is a testament to their ineffectiveness. Now that a solar developer has approached the town, the township is trying to make amends with the Pinelands Commission to get a solar farm constructed on the landfill. However, this must happen by the end of the summer in order to leverage BPU funds. With money on the line, and a ticking clock, the township is suddenly very motivated to change its ways.
The power of the Commission primarily rests in its ability to approve or deny applications according to their compliance with the Comprehensive Management Plan. Once an application is approved, that leverage evaporates. When this matter was discussed at the January 13 meeting, Commissioner Lohbauer pointed out to his fellow Commissioners: “we’re holding leverage right now over that development, which can perhaps enable us to force the resolution of these outstanding violations.” He later made the point that, “We always bemoan the fact that we don’t have enforcement capability, so we have to rely on moments like this where we hold an approval over an applicant’s head, and that applicant may have other matters that we’re concerned about, and I’m very, very, concerned about those and I don’t want to give up on them and that’s why I’m reluctant to go along with this resolution today.”
Commissioner Avery countered that “The leverage that the commission maintains is the requirement that the solar panels can’t be constructed until the violations are resolved. I think this is the first time that we’ve really had that kind of leverage…” which led him to the conclusion that “there is going to be pressure beyond what the commission can put on the township.” Commission Chair Matos echoed this sentiment, saying that the township and the developer are “very motivated to resolve these other outstanding issues, of which the landfill being uncapped is the most severe violation.” She then assured her fellow Commissioners that approving this application would be a ‘necessary step’ that would not result in them losing leverage.
Commissioner Lloyd replied: “I think that this is a proposal that should probably go forward, but not in the form that it’s in now.” He then requested that they “narrow the approval to make sure that it’s not setting a precedent that we’re going to regret in the future.” In response to the concerns expressed by several Commissioners, staff drafted a more explicit version of the resolution for consideration at a special meeting that was called on January 27 to reconsider the application. Commissioner Lohbauer reiterated his unease with the way that the Commission was giving up its leverage, but he joined in the chorus of ‘yay’ votes with his fellow Commissioners in the end. There were no ‘nay’ votes, but Commissioner Wallner did abstain.
One public commenter was irate that a vote was taken before the Commission welcomed public comment; she was unaware of the standard Commission procedure to receive public comment at the meeting before an application comes to a vote (in this case, at the December 9 meeting). In her complaints about the difficult-to-understand procedures of the Commission, the commenter incidentally called attention to the fact that the public was not given the opportunity to comment on the resolution after it had undergone significant revisions. This situation is rare, if not unprecedented, which contributed to the public comment aspect being overlooked. In a special meeting that is called to discuss only one topic, what is really the point of holding the customary public comment portion, if not to respond to that singular topic? She finished with an admonishment: “I think it’s ludicrous… I feel that nobody here should vote ‘yes’ on any application in any township that has any violations. You’re not standing your ground. You’re not standing your ground at all.”
Should the Pinelands Commission be rushing an application through with only the promise of violation resolution in future applications to stand on? It is now up to Berkeley Township and CS Solar to stick to their word, by resolving the outstanding violations, while preparing their final application for the full solar farm. Now that the resolution has been approved by the Pinelands Commission, the landfill capping can begin. One violation down, 15 more to go.
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