Public hearing for use of land for wind farm cables takes place a day after BPU decides issue
TRENTON — The state Board of Public Utilities on Sept. 28 granted easements and diversion of Green Acres land in Ocean City for the development of the Ocean Wind project against the wishes of the governing body.
“The board hereby finds that the requested property interests and consent preemption are reasonably necessary for construction and operation of the Ocean Wind Project,” the board stated.
The property is being taken at the end of 36th Street and a lot north of the Roosevelt Boulevard (34th Street) bridge for power transmission cables to connect with the electrical substation at the former B.L. England Generating Station in Beesleys Point.
“Today’s vote fills in a procedural checkbox for Ocean Wind proponents. While Ocean City has taken no formal position on Ocean Wind’s application, it does have legitimate concerns about the potential impact of running high-voltage transmission lines under our beaches, neighborhood streets and wetlands,” Mayor Jay Gillian said in a statement. “Instead of working with the city to satisfy these concerns, the state and Ocean Wind have chosen to strip the city of local review. This is a dangerous precedent for all New Jersey municipalities, and the city will continue a legal challenge of the Board of Public Utilities’ authority in this matter.”
The following day, during a public hearing on the matter, representatives from Ocean City and other stakeholders argued against allowing the easements, apparently after they had already been granted.
The city argued the BPU doesn’t have the authority to grant an easement for the project, and even if it did the would-be wind farm developer hasn’t proved obtaining it is reasonably necessary.
The wind farm, proposed as a joint venture by Ørsted and PSEG, would involve as many as 98 wind turbines 15 miles off the coast of Cape May and Atlantic counties. The project is in the review phase and is the first of many proposed off the coast of New Jersey.
Ocean Wind is seeking easements on properties owned by Cape May County and environmental permits from the county to allow the project’s transmission lines from the offshore wind farm to connect to the site of the former B.L. England power generating station. Plans call for transmission lines running through Ocean City, under the beach and streets and then to Beesleys Point in Upper Township, where they would connect to a power substation on the site of the former plant.
BPU Commissioner Bob Gordon conducted the meeting, which was held via Zoom. He said the board has the authority through N.J.S.A. 48:3-87.1(f) to determine whether the easements and consents are “reasonably necessary.”
A little more than a year ago, the New Jersey Legislature quickly passed the law, giving decisions about certain utility rights of way — including for wind farm transmission lines — to the BPU rather than the community in which they are requested.
The resort protested that took away home rule. It was made clear the Legislature took the action because Ocean City officials had been vocal in their opposition to Ocean Wind.
Ocean Wind weighs in
Madeline Urbish, head of government affairs and policy for Ørsted, opened with her arguments why the BPU should grant the easements.
She said Ocean Wind 1 would be the first offshore wind project approved by the BPU and would help fulfill Gov. Phil Murphy’s goal of creating 11,000 megawatts of wind energy by 2040.
Urbish argued that onshore cable is necessary to transfer renewable energy from the wind in the ocean to the existing power grid. She said the preferred route would bring an undersea cable to shore in Ocean City, making landfall at the city-owned beach lot at 36th Street.
The underground cable would run west to Bay Avenue, north to Roosevelt Boulevard, west across Pecks Bay, continue on Roosevelt to Route 9, then to the power substation near Great Egg Harbor Bay.
Urbish said the company has undertaken extensive investigation of alternative routes and identified this as the preferred route. The company needs a temporary easement on county property during the construction phase and a permanent easement of .614 acres. She said a permit is required by the state Department of Environmental Protection to move forward but that it cannot be obtained without legal consent from the county.
She said the company had been negotiating with the county in good faith and made a formal offer to buy the property but the county has not been willing to reach an agreement on the easement.
Urbish said Ocean Wind requests the board determine the easements are reasonably necessary, adding the BPU has jurisdiction to make the determination.
She finished by saying the company still hopes the county will part with the property voluntarily, but “time is of the essence.”
Cape May County counters Ørsted
Attorney Michael Donahue countered, saying Urbish made it sound as if the county were being obstinate but “nothing could be further from the truth.”
Instead, he said, the county went to great lengths to organize and set up equipment for a presentation before elected officials.
During that informal meeting, Donohue said, there was no mention that the state was about to pass a law that would take home rule away from the county.
He argued that the preempting authority of the BPU is new and “about to be tested in the courts” and “subject to new interpretation.”
Donohue objected to being limited to discussion about the preferred route, which he called not reasonably necessary, saying county officials have “serious concerns about the project,” including its effect on fisheries, whales, piping plovers, bald eagles and migratory birds that “should concern everybody.”
Donohue said the county supports wind energy but “these projects are moving at breakneck speed with serious and perhaps long-lasting negative impacts being given little to no consideration.”
He also said there should be discussion about the cumulative effect of all of the proposed wind farms, citing Atlantic Shores and other projects planned for the designated area offshore.
“What will be the cumulative effects of these projects and others on our economy and the well-being of Cape May County families and businesses?” he said.
Donohue said Ørsted should be looking at alternate routes such as the Great Egg Harbor option, which is mainly underwater, or the abandoned railroad alternative with a northerly leg extension using the Garden State Parkway.
“Both of those routes will eliminate conflict on county roads and infrastructure, eliminate traffic problems on county roads and minimize resident and commercial business impacts,” he said.
Donohue argued that cables in the vicinity of the Roosevelt Boulevard Bridge would interfere with future replacement, noting it was built in 1962 and needs to be widened. He said that would be “impacted detrimentally by the transmission lines.”
Donohue further argued that the roadways will need to be raised as the ocean level rises, another project that would be complicated by the presence of the cables.
“None of that has been addressed in the submission for the project,” he said.
Donohue added that Ocean Wind has been unwilling to discuss efforts to reduce the impact of the project on the region.
“We had hoped to continue discussions with Ørsted over ways to perhaps modify the project to reduce negative impacts, especially the cluttering of a horizon that has been pristine since the beginning of time,” he said. “We had hoped to attempt to reach some workable resolution of issues, but, in our opinion, Ocean Wind 1’s timeline is its most important focus, not solving the problems identified by the people and businesses of Cape May County.”
He said the county’s economy is based on tourism and fisheries, “and windmills will have an impact on both of those things.”
“Our culture, our livelihoods may be affected by this,” Donohue said. “Ørsted should take into consideration our concerns” and have discussions “not based on corporate timelines.”
Ocean City: BPU has no right
Ocean Wind also has filed a petition for a diversion of Ocean City beach lots at the end of 36th Street and a lot north of the Roosevelt Boulevard (34th Street) bridge for its transmission cables. Those lands are encumbered by the state’s Green Acres restrictions.
Ocean City Business Administrator George Savastano argued the BPU does not have the power to grant approval since the state law stripping it of local rule has not been challenged in court, saying the matter should be referred to the Office of Administrative Law.
“The hastily adopted NJSA 48:3-87.1(f), upon which Ocean Wind relies, purports to broadly preempt all other state laws, rules and regulations. It strips county officials of the power to decide whether Ocean Wind — a private corporation — may take municipal and county property rights within Ocean City and Cape May County, in complete disregard of the will of the respective governing bodies and their constituents,” Savastano said. “NJSA 48:3-87.1(f) has not yet been tested in the courts. It remains to be seen whether it will survive judicial scrutiny.”
He said the New Jersey Constitution of 1947 states “any law concerning municipal corporations formed for government, or concerning counties, shall be liberally construed in their favor.”
“The novelty of NJSA 48:3-87.1(f), coupled with the cited language from the New Jersey Constitution, should be reason enough for the board to refer Ocean Wind’s petition to the Office of Administrative Law … for hearing and disposition,” Savastano said.
He also argued that Ocean Wind should be required to disclose the costs of alternative routes, saying its preferred route is the least expensive instead of the one that has the least impact on the environment.
“The cost is absolutely relevant to the question of whether Ocean Wind’s preferred route is reasonably necessary. Realistically, each and every criterion constraint considered in the evaluation of the point of interconnection and preferred route could be mitigated if cost were no issue. It appears that Ocean Wind is promoting the most economically expedient route at the expense of the communities of Ocean City and Cape May County,” Savastano said. “Until and unless Ocean Wind discloses the cost of each of the alternate routes, the board cannot find that the easements and consents … are reasonably necessary.”
The previous day, the BPU had rejected that argument.
“The board hereby finds that the engineering and environmental considerations Ocean Wind provided are sufficient to show that the property interests and consents for the Preferred Route are reasonably necessary, irrespective of the cost differences between such route and any alternative route,” it stated in its ruling.
Savastano said using the Great Egg Harbor route would eliminate the necessity of taking the easements against the will of the governing bodies.
“The overwhelming benefit of utilizing the Great Egg Harbor route is the utter lack of disturbance to the citizenry of Ocean City and Cape May County. The city’s pristine beach and the municipal and county wetlands would not be disturbed and the streets would not be excavated,” he said. “Instead, the land of a municipality which embraces this project, Upper Township, would be impacted. That would be a more fitting result.”
But the BPU had ruled that “Ocean Wind ultimately selected the proposed routes to each interconnection point based on technical feasibility of cable design, constructability, real estate availability, environmental impacts and stakeholder considerations.”
Finally, he said, the BPU should wait for the final Environmental Impact Statement to make a decision, noting many agencies have yet to weigh in on the project.
Upper Township: Don’t interfere
Representing Upper Township, Maley Givens said the municipality has an agreement with the wind farm developer to connect to the substation on the former B.L. England Generating Station site and was interested mostly in ensuring nothing interferes with its plans to redevelop the 348-acre site.
“Upper Township must maintain its legal authority to manage and direct the redevelopment of a blighted area for the benefit of its residents and the entirety of Cape May County,” she said.
The township designated the property as an area in need of redevelopment and entered into an agreement naming Ocean Wind as conditional redeveloper of part of the property. The former generating station makes up 323 acres and the rest is owned by the township.
After the plant was decommissioned in 2019, the tax value dropped to close to 62 percent of the 2010 value when the plant was fully operational, Givens said.
“Upper Township has a significant interest in … the proper redevelopment of both the Upper Township property and the rest of the redevelopment area,” she said.
Givens said having Ocean Wind’s proposed substation in its current location would allow use of existing infrastructure and the substation on the Upper Township property.
The township further requested the onshore cable route connect to the substation in its currently proposed location so as not to interfere with redevelopment activities.
By CRAIG D. SCHENCK/Sentinel staff