May 4, 2020
Bruce S. Katcher
MGKF Special Alert
On May 2, 2020, Governor Murphy issued Executive Order 136, an order extending and pausing the running of certain statutory timeframes applicable to a variety of NJDEP programs under which agency permits or other approvals are issued beginning on March 9, 2020 – the date the Governor first declared the Public Health Emergency associated with the COVID-19 outbreak pursuant to EO 103.
The general intent is to provide NJDEP with additional time to review applications for which the timeframes impose limitations on how long the agency has to review, receive public comment on or otherwise act upon these applications – under the applicable statutes, failure to meet these limitations could cause the applications to be “deemed approved”. These statutory requirements are suspended.
While the extensions will also afford applicants more time, they could also result in delays in the issuance of permits and approvals addressed by the order. This is moderated somewhat by a requirement that NJDEP act within statutory timeframes “to the maximum extent practicable” and consistent with applicable federal program requirements.
The affected Land Use permitting programs include timeframes dealing with the following:
- Public notice, review or final action on permits issued under the Waterfront Development Act, Coastal Area Facility Review Act (CAFRA) and the Flood Hazard Area Control Act. The order applies to agency actions under the 90 Day Construction Permit Law (which governs all three programs) and specific provisions of CAFRA that supplement the 90 Day Law.
- Actions under the Wetlands Act of 1970 (governing coastal wetlands).
- NJDEP action on municipal or other delegated agency applications for stream cleaning, clearing or de-snagging.
Solid Waste – Collectors; Recycling and E-Waste Reporting
The order extends the timeframes for NJDEP review of solid waste collector applications for certain property disposition, merger or consolidation transactions under the solid waste utility laws.
The order also extends the time for municipalities to submit their annual recycling tonnage reports (due on July 1) and the time for those who collect electronic waste to submit their semi-annual report (due August 1) by 60 days.
New Dirty Dirt Law Registration, Licensing
The order extends the time for businesses to submit to NJDEP their registrations under the new soil and fill recycling law (aka the “Dirty Dirt Law”), the time for NJDEP to review and the time for businesses to submit their license applications for a period equal to the period covered by the Public Health Emergency declaration plus sixty days.
EO 136 also imposes additional requirements on NJDEP:
- The NJDEP Commissioner must issue an Administrative Order within 5 days that extends regulatory timeframes to accept public comments on applications for, or renewals of permits, registrations, plans or other approvals where necessary to ensure adequate public participation.” The Order does not specify whether this requirement is limited to the programs otherwise addressed in the order.
- NJDEP is authorized to establish earlier timeframes for review and decisions on specific permit applications, where an earlier decision is in the public interest or necessary to maintain appropriate sequencing with federal timeframes.
- Even with the various extensions, NJDEP is required “to review all applications within applicable timeframes to the maximum extent practicable and as necessary to satisfy its obligations of State implementation of a federal program pursuant to Federal law.” [emphasis added]. This seemingly requires NJDEP to continue to act expeditiously and to meet federal deadlines, although the enforcement of the “to the maximum extent practicable” requirement would seemingly be problematic.
- Review of applications related to the COVID-19 emergency must be expedited.
No other permits or deadlines are affected by this action, although NJDEP has previously extended certain regulatory deadlines by administrative action (e.g., site remediation program timeframes, air emissions reporting) and waived other regulatory requirements (e.g., certain solid waste regulations).
In addition to the above, pending before the New Jersey Legislature is a bill (S-2346) which would extend the effective dates of existing permits and approvals covered by the Permit Extension Act, which includes a wide variety of environmental permits, for the period covered by Governor’s Public Health Emergency Declaration.
If you have any questions regarding the above, you may contact Bruce Katcher at 484-430-2320.