If developing a piece of land to build a house were a poker game between you and the Pinelands Commission, threatened and endangered (T&E) species would be the Commission's ace card – or, rather, the ace card that could be called out of their back pocket.
A good, clean game of Blackjack requires that everybody see the cards – that the deck is shuffled on the table in front of the players. However, the regulatory staff at the Pineland’s Commission hide some of the deck behind a curtain of “confidentiality”.
First, A Quick Primer on T&E Species
According to the New Jersey Department of Environmental Protection, endangered species are those whose “prospects for survival in New Jersey are in immediate danger because of a loss or change in habitat, over-exploitation, predation, competition, disease, disturbance or contamination.” Threatened species are those who may become endangered if conditions surrounding them begin to or continue to deteriorate.
In other words, endangered species are in trouble because of people, disease, food competition and the prospect of being eaten themselves. Threatened species are plants and animals that may become endangered if circumstances turn for the worse.
The Pinelands Commission T&E Protection Standards
Now that we understand a little more about the plight of certain plant and animal species, next let’s look at the Pineland’s T&E Protection Standards. Section 6.33 of the Comprehensive Management Plan (CMP) reads:
No development shall be carried out unless it is designed to avoid irreversible adverse impacts on habitats that are critical to the survival of any local populations of those threatened or endangered animal species designated by the Department of Environmental Protection pursuant to N.J.S.A. 23:2A-1 et seq.
This means that no development, not even on a single parcel of land, can be approved “as is” if the Commission feels the development will adversely affect the living space that a T&E species needs to prosper.
A key question that arises with every development application is, “will the Threatened and Endangered (T&E) Protection Standards need to be addressed”? But before this threshold question can be answered, the following sub-questions must be answered:
1. What is an irreversible impact?
2. What is an adverse impact?
3. What is critical to survival?
The Vagaries of T&E Interpretation
The regulation does not define the terms, nor answer the questions. Accordingly, these issues are addressed by the regulatory staff. They read the vague language of the T&E Protection Standards and apply their own individual judgment. This judgment is what they call “regulatory interpretation”.
And regulatory interpretation by a government agency whose stated mission is to preserve land means that the landowner will be under pressure. The good news is that we only lose money and land rights, unlike T&E species that sometimes face pressure by higher, hungry predators.
In rural areas of the Pinelands, T&E concerns arise in most applications for development of single-family homes. So, many applicants will be forced to deal with these internal interpretations.
How the Commission Uses Secrecy Laws to “Protect” Certain Animals and Plants
As if the vagueness of T&E standards were not difficult enough to untangle, the official position of the Pinelands Commission is that applicants are not entitled to specific information regarding T&E species that effect proposals to build a house. At best, regulators will disclose that a certain species is within a ¼ to ½ mile range of the subject site.
Access to New Jersey public records is governed by the Open Public Record Act (OPRA). This law basically says that public records (which is what T&E records are) shall be given to the public, unless there is a specific exception in the statute, another regulation or executive order of the Governor.
Under OPRA, there is no exception covering T&E species. However, the New Jersey Department of Environmental Protection (NJDEP) has received specific regulatory protection from releasing T&E species information. N.J.A.C. 7:1D-3.2 says that the precise location of endangered and/or threatened animal species or endangered plant species shall remain confidential. OPRA laws allow one agency regulation to protect another agency, so the Commission relies upon this provision.
The Double Whammy of Vagueness and Secrecy
Walking away from this T&E poker game without losing your shirt is difficult. We are faced with an enigma wrapped in a mystery. The enigma is the lack of clear standards for determining what is irreversible, adverse and critical (See the above questions). The mystery is the lack of information concerning the location of T&E species.
The “Option” One Token for Meeting T&E Protection Standards
In the movie, National Lampoon’s Vacation, Clark Griswold – played by Chevy Chase – takes a cross-country family vacation to visit Walley World, a family-fun amusement park in Los Angles. The journey is filled with mishaps, including a car crash in the middle of the Utah desert.
Stranded, then rescued, Clark and his family have their car repaired by a local shop. Clark pulls out his wallet to pay the repair bill, and the owner – clad in overalls and wearing yesterday’s grease – demands all his cash.
Griswold objects and rhetorically asks, “what does your sheriff think of your business practices”? In response, the mechanic flips out a gold badge with the imprint “Sheriff”. The Sheriff/Mechanic just laughs, and Clark gives up.
In our world, the Pinelands Commission is the sheriff. They are the judge and jury. And, as the mechanic forced the Griswolds to pay dearly to get on their way to Wally World, so too will the Commission allow us to move forward.
When a regulatory staff member a.) in his or her opinion b.) determines c.) using confidential information d.) that T&E concerns are implicated, then the Pinelands Commission may offer a compromise. However, the cost is high.
The Option One for T&E protection standards will allow the development of a single-family dwelling conditioned upon the applicant landowner agreeing to a deed restriction. The deed restriction would prevent virtually all activity on the restricted area in favor of the protected T&E animal or plant.
Could the Pinelands Commission Be Using T&E Standards to Kill Development?
The Red-shouldered Hawk is a handsome raptor – a bird of prey. It has razor-sharp talons and beaks as hard as steel. These hawks perk on the tree canopies, and swoop down upon unsuspecting rabbits, chipmunks and snakes. They are hunters, not gatherers – eating and sharing with their family what they kill.
Is it possible that they, along with other threatened and endangered animals, are being used to kill – or, at least, to unreasonably or unlawfully infringe upon property rights?