New DEP Waiver Rules in New Jersey

March 2012Articles In the Zone

In an action, favoring developers and condemned by environmental groups, the New Jersey Department of Environmental Protection has adopted a rule allowing relaxation of the Department’s standards under certain circumstances. The DEP Waiver Rule will be published in the April 2, 2012 “New Jersey Register.”

The Waiver Rules do not impose any new DEP standards. Instead, the rules provide a mechanism for the consideration of relaxation of standards in the DEP’s existing rules in appropriate circumstances.

The DEP provides that the purpose of these rules “is to set forth the limited circumstances in which the department may, in its discretion, waive the strict compliance with any of its rules in a manner consistent with the core missions of the department to maintain, protect and enhance New Jersey’s natural resources and to protect the public health, safety and welfare, and the environment.”

The regulations provide the limited basis for a waiver and require that the department may, in accordance with this chapter, prospectively waive strict compliance with any of its rules, only when it determines at least one of the following exists:

1. Conflicting rules are adversely impacting a project or preventing activity from proceeding;

2. Strict compliance with the rules would be unduly burdensome;

3. A net environmental benefit would be achieved; or

4. A public emergency that has been formally declared.

The rules specifically provide that no waiver will be approved of a specific requirement of, or a specific duty imposed by, a federal statute or regulation, unless that statute or regulation provides for such a waiver. Further, waivers are precluded for standards contained in a federally delegated, authorized or assumed program, where the waiver would not be consistent with New Jersey’s delegation, authorization or assumption of the authority under that federal program.

No requests for waivers will be accepted before August 1, 2012, and there is no time frame for the DEP to act on a waiver request.

The rules further contain notice and decision requirements calculated to provide the public with notice of the application and the applicant with a basis for DEP’s approval or denial of a requested waiver.

The New Jersey Department of Environmental Protection rule adoption document and additional information regarding the waiver of department rules can be found at http://www.state.nj.us/dep/waiverrule/.

These new waiver rules will provide the development and regulated community with some flexibility to apply for waivers in the limited instances set forth in the rules and would give the DEP some added flexibility to enable worthwhile development projects to move forward.

For more information, please contact Jack Plackter.