Boardwalk destruction caused by Hurricane Sandy in Lavallette, NJ.On November 3, 2012, less than five days after Hurricane Sandy washed away much of the Jersey Shore and its infrastructure, NJDEP Commissioner Bob Martin signed Administrative Order No. 2012-13 (the “Order”), temporarily waiving permitting requirements for State, County and Municipal agencies seeking to rebuild after the storm. The swift action of NJDEP unleashed a storm of its own from critical environmentalists worried that the rush to rebuild the devastated areas would recreate the same vulnerabilities.

The Order provides certain temporary permitting waivers to State, County and Municipal agencies for purposes of repairing and/or replacing public infrastructure damaged as a result of Hurricane Sandy. Permitting programs and rules affected by the Order include the Coastal Permit Program, the Flood Hazard Area Control Act, and the Freshwater Wetlands Protection Act Rules.

Waivers provided by the Order are limited to activities consisting of (1) in-kind replacement of existing public infrastructure, and (2) repair of scouring caused by Hurricane Sandy that is directly adjacent to an existing bridge, culvert, or public roadway. In order to qualify, the activities cannot (a) result in an exceedance of the pre-existing footprint of the public infrastructure, (b) adversely impact previous flow conditions or environmental resources, or (c) obstruct flow in the respective channel or floodway.

Within one hundred eighty (180) days of the Order, the State, County and Municipal agency conducting the work, must submit an inventory of the damage resulting from Hurricane Sandy, the activities completed or underway that meet the criteria of the Order, and certifications from an agency official and a licensed engineer confirming that the activities qualify under the criteria. Following receipt of this information, NJDEP will provide written authorization for the eligible activities. State, County and Municipal agencies will also have to submit a final report within sixty (60) days of receiving the written authorization by NJDEP. Under the Order, NJDEP has reserved its enforcement rights with respect to ineligible activities improperly performed by State, County and Municipal agencies, and may require a formal permit application or restoration for non-compliant activities.

The Order is limited to public infrastructure activities, and provides no exemption for (i) activities conducted by private parties and/or on private lands; (ii) compliance with federal requirements; or (iii) discharges or releases that may occur during the exempted activities.

Citing to the need to “restor[e] basic public infrastructure” as “a critical first step toward the recovery of our cities and towns” the Commissioner stated that “[r]ed tape should not and will not hold up this vital work.” However, the New Jersey Sierra Club and other critics of the Order argue that exemptions will encourage redevelopment of State infrastructure too quickly without proper consideration of whether modifications are necessary to prevent the destruction or deterioration of these resources during future storm events. Given recent increases in significant weather events, consideration of sustainable infrastructure may be warranted as the rebuilding process begins. It will be important for impacted areas to understand and monitor how New Jersey will balance these competing interests as it looks to the future.