As storms like Superstorm Sandy continue to grow more devastating and frequent, communities, governments, businesses, and industries of all sizes and varieties must face the challenge of adapting to a changing climate. October 29, 2019 marked the seventh anniversary of Sandy hitting New Jersey. Governor Murphy marked this occasion by signing Executive Order 89, which calls on the Department of Environmental Protection (DEP) to establish a Statewide Climate Change Resilience Strategy, among other initiatives related to climate change adaptation. “New Jersey is extremely vulnerable to the impacts of sea-level rise and global warming, and [this] Executive Order outlines a bold and comprehensive set of actions to ensure that our communities and infrastructure are more resilient against future storms,” said Government Murphy about the signing. The preamble to the Executive Order notes that New Jersey is especially vulnerable to the impacts of climate change as a coastal state. Picking up on this administration’s Environmental Justice efforts, the Order acknowledges that minority and low-income communities are disproportionately affected by the impacts of climate change. Climate change of course is an issue that also impacts all communities, including the business community, industry, and government. The preamble also notes that “studies show that each...
On March 18, 2019, New Jersey Governor Phil Murphy signed legislation authorizing municipalities (and other public entities) to establish utilities for the creation and management of stormwater infrastructure. The legislation, S1073, also known as the Clean Stormwater and Flood Reduction Act (the “Act”), provides that a governing body of a county or municipality may create a stormwater utility “for the purposes of acquiring, constructing, improving, maintaining, and operating stormwater management systems.” The Act also allows municipalities and counties that have established sewerage authorities to request that the authority create a stormwater utility, so that the functions of the utility would be managed by the existing authority rather than the municipality(ies) or county directly. Perhaps most importantly, the Act authorizes stormwater utilities to “charge and collect reasonable fees and other charges” to recoup the costs incurred by the utility in performing stormwater management in the subject locality. Under the Act, charges may be assessed against the owner or occupant, or both, of any real property from which stormwater enters a stormwater management system. The Act also includes provisions allowing municipalities, etc. that establish stormwater utilities to issue bonds to fund stormwater management systems, and imposes reporting requirements on utilities and rulemaking...
Turning Back the Clock: NJ Appellate Division Holds That ISRA De Minimis Quantity Exemption Still Available Following Withdrawal of NFA
The New Jersey Appellate Division recently announced several interesting holdings regarding the New Jersey Industrial Site Recovery Act (“ISRA”), N.J.S.A. 13:1K-6, et seq. In R&K Associates, LLC v. New Jersey Department of Environmental Protection, Docket No. A-4177-14T1, the Court held that a former owner of an industrial site may apply for an exemption from the ISRA process even when the former owner has not owned the site for many years and elected to not pursue the exemption in the past. The case concerned the final decision of the Department of Environmental Protection (“DEP”) denying a De Minimis Quantity Exemption (“DQE”) under ISRA to the former owner of the subject industrial site. ISRA is the New Jersey law which generally requires owners of industrial sites to remediate on-site environmental contamination or expressly assume responsibility for remediation prior to transferring an ownership of the site. A DQE under ISRA allows an owner of an industrial site to avoid the requirements of ISRA where only trivial amounts of hazardous substances were used on-site. The case has an extensive procedural history with three appeals and numerous DEP actions, beginning with DEP’s withdrawal of a 1997 No Further Action (“NFA”) letter to the former owner. When...
Recently, the City of Newark (the “City”) approved Ordinance No. 16-0803, a/k/a the Environmental Justice and Cumulative Impacts Ordinance, (the “Ordinance”), which may significantly impact the process for seeking development approvals from the City. The Ordinance purports to advance the policy of promoting environmental justice, environmental stewardship, and sustainable economic development in the City. More specifically, the Ordinance seeks to mitigate the disproportionate impact of pollution and environmental degradation on the health of minority and socioeconomically disadvantaged communities, otherwise known as “environmental injustice.” As the Ordinance notes, the prevalence of environmentally overburdened, underserved, and economically distressed communities near industrial centers and other areas afflicted by poor environmental quality is well documented.
New Jersey Supreme Court Finds Neither Plan Approval Nor Complete Remediation are Prerequisites to a Spill Act Contribution Action
In Magic Petroleum Corporation v. Exxon Mobil Corporation, the New Jersey Supreme Court held that a party funding remediation of a contaminated site may bring a contribution claim against other potentially responsible parties (“PRPs”) before completing remediation and prior to receiving the New Jersey Department of Environmental Protection’s (“DEP’s”) written approval of the remediation plan. In so doing, the Court has provided certainty, to a degree, to the environmental remediation process in New Jersey.
At the end of last week, the New Jersey State Senate (“Senate”) introduced Bill S3116 that proposes to continue the moratorium on the statewide non-residential development fee (the “Fee”) that expired on July 1, 2013. Since July 1, 2013, developers and land use attorneys have been in a state of flux with regard to whether the fee applies to development projects. If passed, this legislation would extend the moratorium to December 31, 2014.
The New Jersey Department of Environmental Protection (“NJDEP”) held its 12th Annual Regulatory Update Conference on November 22, 2013. The conference provided brief regulatory updates from a number of NJDEP departments and programs. The New Jersey Department of Environmental Protection (“NJDEP”) held its 12th Annual Regulatory Update Conference on November 22, 2013. The conference provided brief regulatory updates from a number of NJDEP departments and programs including: The Environmental Management Program; The Site Remediation Program; ; The Bureau of Air Quality Planning; The Office of Environmental Justice; The Bureau of Environmental Evaluation & Risk Assessment; The Emission Statement Program; and The Office of Science.
A recent news release on the NJDEP website discusses new efforts by the Christie Administration to streamline vital rebuilding projects necessitated by the destruction caused by Superstorm Sandy. The new rules, which were adopted on an emergency basis on April 16th, are intended to eliminate some of the red tape typically associated with permit procedures, while ensuring the protection of coastal resources and encouraging the rebuilding of a more resilient New Jersey coastline. This is just the latest action taken by the Governor and NJDEP to ease the burden on residents, businesses and municipalities seeking to rebuild. Beginning as early as five days after the storm swept through New Jersey, actions were already being taken to waive permitting requirements for those rebuilding vital infrastructure such as roads and bridges. More recently, the Christie Administration adopted a streamlined process for property owners wanting to rebuild to new elevation standards in flood zones.
For the first time in more than two decades, the Federal Emergency Management Agency (“FEMA”) has updated its Advisory Base Flood Elevation (“ABFE”) maps for New Jersey’s coastal counties. The Christie Administration adopted these new standards as an emergency measure on January 24, 2013, and through formal NJDEP regulations, has now made them permanent. The revised FEMA elevations, which remain subject to change, are anywhere from two to four feet higher on average than the standards that had been in effect prior to Hurricane Sandy. New Jersey residents, particularly those impacted by flooding from Hurricane Sandy, should be aware of this change, as the NJDEP has incorporated these revised maps as the new standard throughout the state for the elevation of reconstructed homes in flood zones.
In a decision that gives the green light to an important component of the Christie Administration’s “Common Sense Principles” approach to regulation, the Appellate Division has upheld the New Jersey Department of Environmental Protection’s (NJDEP) “waiver rule,” which permits the department to waive strict compliance with many of its regulations in defined circumstances. Full implementation of the rule will have to wait, however, as the Appellate Court invalidated a variety of forms and guidance documents that NJDEP had posted on its website without going through the normal rulemaking process required by the Administrative Procedure Act (APA).