NJDEP Commissioner McCabe Orders Extension of Regulatory Public Comment Periods – Update from Manko Gold Katcher Fox

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COVID-19 UPDATE

May 12, 2020

Bruce S. Katcher

MGKF NewsFlash

Under Executive Order 136 issued May 2, 2020, Governor Murphy extended and paused the running of certain statutory time frames applicable to a variety of NJDEP programs under which agency permits or other approvals are issued beginning on March 9, 2020 (see our May 4, 2020 Alert). At the same time, he ordered the NJDEP Commissioner to extend the agency’s regulatory time frames to accept public comment on applications for, or renewals of permits, registrations, plans or other approvals as necessary to ensure adequate public participation.  Those extensions were ordered by Commissioner McCabe on May 8, 2020 by Administrative Order 2020-26.     

Most of the extensions add 30 days to the regulatory time frames to submit public comments (with certain limited exceptions spelled out in the order). These supplement a number of the extensions provided for in EO 136 which addressed statutory but not regulatory time frames for NJDEP review and public comment periods.  The programs affected include the following:

  1. Freshwater wetlands permits
  2. Water quality management plans
  3. Water allocation permits
  4. Temporary dewatering permits
  5. New water usage certifications
  6. Solid and hazardous waste permits
  7. Air pollution preconstruction permits
  8. Air pollution draft operating permits

Notably, these extensions go beyond the programs addressed in the extensions provided for in EO 136.  Nor do they affect extensions previously granted by NJDEP under other administrative actions (e.g., site remediation program timeframes, air emissions reporting). 

The Administrative Order does not extend comment periods that expire prior to the date of the Order, nor does it preclude the Department from applying the extensions to permits where an earlier decision is necessary to comply with state implementation of federally delegated programs or “[f]or the protection of public health, safety and the environment or otherwise related to the Federal or State response to the COVID-19 pandemic.” It is unclear if this latter provision applies to all instances related to the protection of public health, safety and the environment or only those related to COVID-19.   

The Administrative Order remains in effect as long as EO 136 remains in effect.