Appellate Division upholds Kirkwood-Cohansey protections. By Heidi Yeh, Ph.D., Policy Director, Pinelands Alliance
What good is it to protect the land if all of the water is drained from it? This is the essential question that the NJ courts recently addressed. The answer has profound consequences for emerging threats like data centers.
This summer, on July 15, a three-judge panel of the New Jersey Appellate Division affirmed the Pinelands Commission’s protections for the Kirkwood-Cohansey aquifer. It is, in the driest possible legal language, a resounding win. Let’s walk through why it matters.
What the rules actually do: Back in 2022, the Commission proposed something fairly modest-sounding on paper: Lower the threshold for new water diversion from the Kirkwood-Cohansey aquifer. If you want to divert water from the aquifer—anything greater than 50,000 gallons of water per day, to be exact—then your plans have to clear a high level of scrutiny. These conclusions need to be backed by real hydrological analysis, not vibes. These rules were the culmination of decades of advocacy from groups like Pinelands Alliance, and it’s worth pausing on how long it actually took to get here.
Three decades in the making: The Commission’s first real Kirkwood-Cohansey-specific standard dates back to 1994, when scrutiny was leveled for non-agricultural diversions of over 100,000 gallons a day. It didn’t take long for that threshold to prove inadequate. Poorly-planned wells in Berlin Township caused a cascade of problems that resulted in the closure of one of the wells.
That fight helped drive a legislative response. In 2001, lawmakers directed the Commission, DEP, Rutgers, the U.S. Fish and Wildlife Service, and the USGS to jointly conduct a comprehensive assessment of the aquifer, backed by $5.5 million from the Water Supply Fund. The resulting Kirkwood-Cohansey Project—12 separate studies, approved in 2003—became the scientific backbone the Commission would eventually lean on to justify tighter rules.
This science did not automatically translate into action. Through the 2010s, the Alliance and other advocates kept pushing the Commission to act on its own research and rein in high-consumption withdrawals, particularly from sand mining. In 2019–2020, Commission staff began drafting the amendments that would ultimately become the rule at issue in this case. The Commission formally proposed them in October 2022 and adopted them, unanimously, in December 2023—nearly three decades after the first Kirkwood-Cohansey standard, and more than two decades after the science that justified strengthening it was first commissioned.
The challenge—and who backed it: It takes about a year for the Pinelands Commission to amend the Pinelands Comprehensive Management Plan (CMP)—and for good reason. Public input is sought, and substantial concerns are addressed through this process.
Public comments were overwhelmingly supportive, the one exception being representatives of the Clayton Sand Mining Company. The Pinelands Commission went through an additional round of edits to address the concerns of the sand mining company, which lengthened the bureaucratic timeline substantially.
These changes were not satisfactory for the sand mining company, which filed a notice of appeal in February 2024. They argued that the Commission had no authority to regulate water diversions, that its rulemaking was arbitrary and capricious, and that it botched the procedural requirements along the way.
The Pinelands Commission defended its own rule, and Pinelands Alliance joined as amicus on the Commission’s side.
What the court said: The panel of judges declined overturning the rule—and dismantled Clayton Sand’s arguments one by one.
On authority: The court found that the Pinelands Protection Act gives the Commission clear, repeated statutory grounding to regulate the water resources of the Pinelands.
On arbitrariness: The court found the Commission had genuinely engaged with industry comments, and had made reasonable changes to address these concerns.
On procedure: The court found the public had ample opportunity to weigh in across multiple hearings and comment periods, and that the Commission was well within its rights to disregard comments submitted months after the deadline.
Why this matters beyond one sand mine: This case was never really about one company’s diversion permit. It was a test of whether the Pinelands Commission’s water management authority would hold up under a direct legal challenge. It held.
These rules are essential to guaranteeing our water supply as South Jersey faces threats from water-thirsty data centers. Pinelands Commission staff basically ruled out the possibility of any data centers being built on the western side of the Pinelands, thanks to these aquifer protections. The fight is never over, but at least we can count this battle as a victory for the people, plants, and animals of the Pinelands.
