The Court noted that when a land owner receives property subject to a permit that allowed the wetlands to be impacted the land owner takes the land without a reasonable expectation of full privacy.    The property owner does have some measure of privacy but it is reduced.  That reduced level of privacy means that the DEP does not have the right to enter residential property over the objection of the landowner.  If the landowner objects, than the DEP commission can issue an order requiring compliance with DEP’s right to inspect the property including monetary penalties for non-compliance.  If that does not work, and I do not expect it will in many cases, DEP can then seek a judicial order permitting the inspection.  The Court was also careful to note that the standard to issue the court-ordered entry is lesser than the probable cause necessary to get a search warrant in a criminal case.  But the Court did not set out the standards for issuing the court-ordered entry.

The Court also left undecided, DEP’s argument that it also had a property right in the land because there was a conservation easement recorded as a result of the Freshwater Wetlands Permit.  In essence since the State owned the easement they did not need the owners of the rest of the property to consent to the search.  The Court did not decide whether under the New Jersey Conservation Restriction and Historic Preservation Restriction Act DEP had a property right to the effected land therefore it did not need a warrant.  This issue will likely be litigated in the future. In the Courts decision it indicated that it probably would not find constitutional a permit requirement to allow such inspections.  It is not clear whether the property interest in the easement would pass constitutional scrutiny with the Court.

Under the current statutory and regulatory provisions, if DEP wishes to inspect a wetland it must request permission from the property owner after showing proper credentials.  If the property owner refuses permission for DEP to inspect the property, than the DEP employee can request that that the Commissioner of DEP issue an administrative order compelling compliance under NJSA 13:9B-21(b).  This statute authorizes the DEP Commissioner who finds a person in violation of any provision of the act or regulation or permit to issue an order:

• Specifying the provision(s) of the act, regulation, or permit violated;
• Citing the action constituting the violation;
• Requiring the person to comply with the cited provision.

So in the instances of the case, once the Hubers declined to allow DEP’s inspection (note that there is a dispute as to whether the Hubers consented or not); the DEP employee could have asked Commission Martin to find the Hubers in violation of NJSA 13:9B-21(m).  This provision authorizes DEP the “authority to enter any property, facility premises or site for the purposes of conducting inspections, sampling of soil or water  . . . and otherwise determining compliance with the provisions of the act.”  The Commissioner would than issue the order requiring the Hubers to allow DEP to inspect the wetlands and transition areas.  If the Hubers did not comply with that order DEP could then have filed suit seeking a court order to compel the inspections.

It is with this last step that the Court has left DEP and the public hanging.  What does DEP have to show to a judge for the judge to issue an order compelling the inspection?  Does DEP have to show that there were or might have been wetlands/transition areas on the property; thus subject to the regulation of DEP and that the property owner did not permit DEP to inspect?  Or will DEP have to show that they have some level of information that not only was or wetlands on the property but that those wetlands have been impacted in violation of the Act and that they requested permission to inspect and were denied by the property owner?  How much information or proof does DEP have to show to order to get a Court order?

Also, this also brings into question how many resources will DEP bring to bear on this issue?  Will they seek penalties and judicial orders compelling compliance against all property owners that refuse inspection?  Or will they in a time of increasing budget cuts, lack of resources and a lack of political will to enforce environmental protections not seek to enforce the law.  Will property owners with wetlands be able to do what they want because DEP will not enforce?  If so, NJ’s wetlands will suffer and in return all of New Jersey will suffer.

f the Highlands Act has devalued the property why is it not a taking?  The Highlands Act, especially in the Preservation Area, required much more acreage to build on.  In essence it created minimum lots sizes, which are large.  It is this large lot sizes that some believe have taken their land.  This is what Vohden is referring.

To understand why Vohden and others making the same claim are wrong you must understand takings law.  The basis for takings laws can be found in the U.S and NJ constitutions.  The Fifth Amendment of U.S. Constitution provides, in part: “nor shall private property be taken for public use, without compensation.”  Article 1, Paragraph 20 of the New Jersey Constitution provides: “Private Property shall not be taken for public use without just compensation.”  New Jersey Courts have determined that the New Jersey Constitution and the U.S. Constitution protect this right equally.

The New Jersey Supreme Court and the Federal Courts have ruled that the 2004 Highlands Water Protection Act is not a takings.  But Vohden’s statement is repeated often enough by people affected by the Act.  I suspect that as we rebuild from Sandy, if we are to do it right, people along the coast of New Jersey may be saying the same thing.

When does a law or regulation take private property?  I would start out by noting that for many years legal scholars and courts did not believe that the Constitution protected against “taking” of property through regulation.  It was originally thought that the only taking the constitution protected against was a physical taking by the government.  That thinking has evolved and probably will continue to evolve.

Currently, the U.S. Supreme Court has held that regulations that impact property are not a taking just because the regulation may have an impact on the value of the property.  The Court has said in numerous cases, “Government hardly could go on if to some extent values incident to proper could not be diminished without paying for every such change in the general law.”  Everyone’s ownership of land is subject to the reasonable exercise of state’s authority.  At one point the Court would look to see if the regulation addressed a noxious and harmful uses of the property.  A property owner has never been able to use their property in a way to could harm another’s property.  If the regulation addressed a noxious or harmful use of the property than the courts would not find a taking even if the property had no use after the regulation.

When a regulation takes all value from a person, the Court has indicated that is a regulation that has the same effect as a physical taking and will require compensation under the Fifth Amendment with one exception.  The Court has said that a state could avoid payment when the regulation controls an aspect of ownership that was not part and never was part of the property’s bundle of rights.  A property owner could not flood his neighbor’s property so a regulations or a statute that prohibited such a use, even if that was the only use of the property would not be a taking.

When a regulation does not take all economic value from the property as a whole the court will take a look at whether the regulation substantially advances a legitimate state interest. If the legislation substantially advances a legitimate state interest than the Court is unlikely to find a taking.  The Supreme Court in Lucas v. South Carolina Coastal Commission set out some items to look at in these situations:

• Degree of harm to public lands and resources or adjacent  private property
• Social value of the claimants activities
• Suitability of the activity to the area
• Relative ease with which the alleged harm can be avoided through measures taken by the claimant or the government
• Whether the use has be historically engaged in by surrounding properties.

In light of the criteria above, the Highlands Act clearly does not violate the criteria.  The Highlands Act was enacted to counter the damage that unrestrained growth was having on the State’s water supply.  This unrestrained growth was impacting not only the quality of water but the quantity as well.  There were no realistic alternatives to protect the water quality and quantity other than to protect the lands that recharged the waters.  I would also argue that historically development in the Highlands area was very spread out and low intensity.  It was only in recent years that development concentrated in the area.  To sort of wrap this up, the Highland Regional Master Plan requires land within the preservation area and not part of a sewer service area to have large lots.  Is that a taking?  Under current constitutional law, the answer is no.  Attacks against the Highlands Act have been unsuccessful in State as well as Federal Courts.

The lessons we have learned in the Pinelands and the Highlands may help guide us as we hopefully address our coastal region.  Hopefully the State will put into place regulations to protect the coastal region.  If that occurs I would suspect that we may hear the same false claims as in the Highlands.  Luckily no matter how many times it is said, mere regulation of property is not a taking.

There is an interesting case awaiting a decision by the NJ Supreme Court.  The issue before the Court is whether a property owner has any Fourth Amendment right to require the DEP to obtain a warrant before inspecting a property for compliance with environmental regulation.  This case was argued before the Supreme Court on 10/23 and awaiting their decision.

As way of background, the DEP entered the Huber’s property, after receiving complaints, to determine whether the Hubers had encroached or filed in wetlands or the transition area.  The department determined that portions of the Huber’s deck, patio and retaining wall encroached into the wetlands and the transition area.  The DEP also determined that the Hubers had filed in part of the wetlands.

The Huber’s challenged all of the DEP’s findings, as well as the existence of the conservation easement that was recorded on the property.  At the hearing before the administrative law judge, the Hubers also challenged the admissibility of the evidence.  The Hubers asserted that the DEP’s inspection was a search under the Fourth Amendment and required DEP to obtain a warrant.  Therefore, the evidence should be suppressed as it was gathered in violation of the Fourth Amendment.    This is the question under consideration by the NJ Supreme Court.

As we probably all know, the Fourth Amendment of the U.S. Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

NJ’s Constitution has a very similar provision:

Art. 1, Sec. 7.   The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.

The Hubers argued, before the Appellate Court and before the Supreme Court, that DEP was required to obtain a warrant before they inspected the wetlands and the buffers on their property.  The Appellate Division found that the Freshwater Wetlands Protection Act provided the authority for the DEP to perform its warrantless inspections.  In particular the Court noted, NJSA 13:9B-21(m) provides:  “The department shall have the authority to enter any property, facility premises or site for the purpose of conducting inspections, sampling of soil or water, copying or photographing documents or records, and for otherwise determining compliance with the provisions of the act.”    The Appellate Court also cited to the enabling legislation of DEP which provides for a very similar general power to the Department.

The question is whether the Freshwater Wetlands Protection Act provides authority to DEP to perform warrantless inspections.  And even if the statutes give the authority to the DEP that does not necessary mean that the inspections pass constitutional must.  Or in another way, do the provisions of the Freshwater Wetlands Act pass constitutional requirements under the Fourth Amendment?  The Courts have generally accepted that inspections as part of an administrative process to enforce regulatory programs can fall under the Fourth Amendments’ requirements.

In general the Courts have accepted warrantless inspections in highly regulated industries.  The Court noted that wetlands were a highly regulated area.  It would appear that the fact that wetlands were a highly regulated “brought it directly under the regulatory arm of the DEP just as much as if it was regulated industry.”    The Hubers have challenged this assumption.  They believe that a homeowner and their house/surrounding yard are entitled to more protection than a regulated industry.  In short, because homes are highly protected by the 4^th Amendment, DEP should have gotten a search warrant prior to performing the inspection.

One Justice was very interested in learning that if DEP had to get a search warrant in order to inspect any wetland in order to insure that it was not impacted in violation of the statute, how DEP would be able to convince a judge they had probable cause to justify the warrant.  If it was very difficult to show probably cause didn’t that mean that DEP’s ability to enforce its regulations would be in jeopardy?  On the other hand, another Justice was asking the State’s attorney how far could DEP go without getting a warrant.  Could they drive a backhoe and remove significant amounts of dirt during their “inspection.”  In short was there any limit on their ability to perform a warrantless search.

While the State’s attorney tried to make the point that the property and the wetlands were subject to a conservation easement, I am not sure, at least from the questioning, that issue was weighing heavily on the Court.  DEP argued that since there was a conservation easement, DEP had a property right in the land; therefore, they as a property owner had every right to go onto the property and inspect the condition of their property.  It may have not weighed heavily in the Court’s mind because it would appear that the DEP inspector was not aware that a conservation easement regarding the wetlands existed.

This case has several unanswered questions which may impact DEP’s ability to enforce its regulations not only in wetlands cases but others.

• Does DEP need a search warrant to do a site inspection?
• What standard of proof does DEP have to demonstrate in order to have probable cause for a search warrant?
• Do conservation easements in of themselves provide some additional right to DEP to perform an inspection without a warrant?
• Does DEP have to know that it has a conservation easement in order to validate a warrantless inspection?

We will see how this decision will impact DEP’s ability to perform inspections and enforce its regulations.

The bill will in essence put into statute what DEP tried to due by regulation in 2009.  While it essentially codifies the regulation there are some differences.  The bill would require actual knowledge that the property exceeds remediation standards while the regulation provides the owner/operator had to certify to the best of their knowledge the property did not exceed the remediation standards.    While this may be a subtle difference it may make a difference in enforcing clean-ups prior to the transfer of the property.

While I suspect the bill will be released from committee on Monday that does not mean the Assembly will pass it or it will make it to the Senate.  Right now there is no Senate version of the bill.  If the bill does get passed by both houses of the legislature it will be interesting to see if the Governor will sign it.

             What is an LSRP?

According to SRRA, an LSRP is “an individual who is licensed by the board pursuant to Section 7 of P.L 2009, c. 60 (C.58:10C-7) or the department pursuant to section 12 of P.L. 2009, c. 60 (C.58:10C-12)” but that definition is not very helpful.  DEP further defines an LSRP as a person who, by education, training and experience, is licensed by the State of New Jersey to oversee the remediation of contaminated sites.  I like to think of them as the professionals who determine if a property is contaminated, how contaminated it is and how to clean it up and who oversees the cleanup and then declares the property clean.

According to SRRA, to be eligible to become an LSRP a candidate must meet the following standards:

• Hold a minimum of a bachelor’s degree in natural, chemical or physical science or an engineering degree in a discipline related to site remediation.
• Have eight years of full time professional experience.Have a minimum of 5,000 hours of relevant professional experience within the state
• Have not been convicted of, or pled guilty to an environmental crime, any similar or related criminal offense; or any crime involving fraud, theft by deception, forgery or any similar or related offense.
• Has not had another professional license revoked within the previous 10 years

The statute defines “full-time professional experience”as experience in which the applicant is required to apply scientific or engineering principles to contaminated site remediation where the resulting conclusions form the basis for reports, studies or other documents connected with the remediation of a contaminated site.  The Board further defines full time professional experience as having primary decision making responsibility.

In addition to the requirements for education, training and experience, the LSRP is guided by a code of conduct which encompasses 26 items.  Most importantly –and, consequently, first on that list – is that: An LSRP’s highest priority in the performance of professional services shall be the protection of the public health and safety and the environment.  Another big item is that an LSRP shall exercise independent judgment and is required to notify the client and the Department if the client deviates from the remedial action work plan.  Theoretically, the LSRP’s primary job is to insure that the remediation is protective of human health and the environment.

Assuming the LSRP performs their job, when the remediation is complete they certify the property was remediated in accordance with the standards and issues a Response Action Outcome (RAO).  RAOs are the functional equivalent of the No Further Action (NFA) letters that DEP issued at the end of a remediation.  The Department may invalidate an RAO under certain circumstances but must do so within three years of its issuance.

             Who oversees the LSRP?

SRRA not only created the LSRP but also put into place a board to oversee the LSRPs – the Site Remediation Professional Licensing Board

SRPLB Logo

(SRPLB).  The board consists of 13 members comprised of the following groups:

• State Geologist
• 6 LSRPs
• 3 members of environmental organizations – one of whom  must also be an LSRP
• 1 Representative of the business community
• 1 Academic member

The current Board is short two members – the academic member and the environmental member who is also an LSRP.

The Board is responsible for administering the LSRP program.  This includes:

• Reviewing applications to become an LSRP and approving or denying such requests.
• Administering and evaluating the licensing exam
• Issuing licenses and license renewals
• Establishing standards and requirements for continuing education
• Approving and offering continuing education classes
• Adopting and administering standards for professional conduct
• Investigating complaints
• Imposing discipline
• Providing information to the public

In order to accomplish these tasks the Board has been meeting since November 2010 and has created several committees to oversee its many obligations.  Those standing committees are:

• Bylaws
• Licensure
• Continuing Educations
• Rules
• Outreach
• Professional Conduct Committee
• Finance

 Licensure

From 2009 to May 2012, while it was waiting for the Board to be installed, the DEP administered a temporary licensure program and issued a total of 572 temporary licenses.  The exams to become a permanent licensee began on May 7^th.  To become an LSRP a person must apply to the Board and, once the Board reviews and approves that application, the individual is then authorized to take the examination.  305 people were authorized to take the first exam on May 7, 2012.  Of this 305, 278 took the test and 216 passed it.  The next test date is September 24^th and there will also be exams in November 2012 and January 2013.  All temporary LSRPs have until January 2013 to take the exam.  After the last exam any temporary LSRP who has not taken or passed the exam will lose their temporary LSRP status and cannot act as an LSRP.  Any temporary LSRP who fails an exam can retake that exam up to three times before losing their temporary license.  After January 2013 the exam will be given on a periodic basis to be determined by the Board.  All licensees must renew their license every three years.

 Continuing Education

This committee is responsible for determining the continuing education requirements for an LSRP. It was the recommendation of the committee that an LSRP complete 36 credits of continuing education over the course of their three year licensee.  Upon applying for renewal of their license an LSRPs must be demonstrate that they have obtained the following::

—  14 Scientific & Technical credits

—  3 Ethical credits

—  10 Regularity credits

—  Balance from any of the above areas

The continuing education committee also reviews course applications and issues a recommendation on whether a course should be approved to provide continuing education requirements.

Rules

The Rules committee is in the process of taking the process documents from various committees and preparing a rule for publication and eventual adoption.  There are currently 4 subsections of the rule up for informal public comment on the Board’s website.

Outreach

This committee is tasked with encouraging public participation in the LSRP Board and it maintains the Board’s website.

PCC

As noted above, the Board is in charge of investigating complaints against LSRPs.  Any person can make a complaint.  A complaint form can be found on the Board’s website.  The job of investigating a complaint is assigned to the Professional Conduct Committee (PCC).  The PCC is made up of five board members.  When a complaint is received it is forwarded to the PCC with the name of the LSRP redacted.  Neither the PCC nor a majority of the Board knows the identity of the LSRP while the complaint is being investigated and the decision rendered.  The only person who knows the name of the LSRP is the Board Secretary who receives the complaints and does the redaction.  The same anonymity cannot be said of the complainant.  Not only does the PCC know the name of the complainant, but the LSRP being investigated is given an unredacted copy of the complaint.  Under exceptional circumstances the PCC may withhold the name of the complainant, but that is anticipated to be a very rare occurrence.  While the Board discourages anonymous complaints, under certain circumstances the PCC will review and investigate those complaints.  Assuming the complaint is not completely without merit, the PCC sets up a Complaint Review Team.

The CRT is comprised of a Deputy Attorney General, an LSRP Board member and one of the non-LSRP board members.  The CRT reviews the material provided by the complaint and can obtain additional documents and information from the DEP, complainant, the LSRP, or their parties.  The CRT also may provide both the LSRP and the complainant an opportunity to submit additional information or to speak with the CRT.  Once the CRT has investigated the complaint it makes a recommendation to the PCC. This recommendation identifies  whether there was a violation of the code of conduct, and, if so which sections of the code of conduct were violated and what the proposed penalty should be.  The PCC may accept this recommendation or send the matter back to the CRT for additional investigation.  The PCC may also modify the recommendation.  The PCC then takes the recommendation to the Board which considers the matter in a closed session. The Board will then vote on the matter in open session. Once the Board votes on the matter, the name of the LSRP becomes public and a summary of the matter is placed on the Board’s website. The LSRP then has 35 days to appeal the Board’s decision.

The PCC has received 7 complaints since its inception.  Four of those complaints are in the process of being investigated.  One of those complaints was referred to the PCC as a result of an audit.   The remaining complaints were investigated and, of those, two were dismissed, one with a warning and one reprimand has been issued.

Audit

Another very important aspect of the Board is the conducting of audits.  SRRA requires the Board to audit at least 10% of the LSRPs each year.  Since the beginning of this year, the Audit committee has been randomly selecting 5 names each month and sending those LSRPs a questionnaire to complete and return.  The number of LSRPs audited will be adjusted depending on the number of licensed LSRPs at the beginning of each year.  Each month a new Audit Review Team (ART), comprised of two Board members,  is selected to perform the audit.   According to the draft rules the Board has been writing, the Board will audit the submissions and conduct of an LSRP to ensure that the LSRP‘s highest priority in the performance of professional services is the protection of public health and the safety of the environment.  The ART reviews the completed questionnaire, and reports prepared by DEP and, based upon this review can request additional information from the LSRP and DEP.  Theoretically, the ART has additional powers to obtain information.  I would suggest the ART could request documents and information from third parties and could perform its own site inspection and testing if it felt it was appropriate.

Once the ART has performed its review it advises the Audit committee if the LSRP’s audit was satisfactory or not.  If the audit outcome is unsatisfactory the Audit committee can refer the LSRP to the PCC for a disciplinary proceeding.

The enactment of the SRRA signaled a major shift on how remediation occurs in the State.  The DEP, responsible parties; LSRPs and the public are adjusting to this new paradigm. The Board is putting into place the procedures and policies to guide everyone.  Eventually these policies and procedures will be adopted as rules which the Board is writing.

an internal process that will ensure consistency and transparency in the handling of all applications.  This includes standardized submissions forms, . . .  and on-line reports that will allow the public to know when applications are received and to access the DEP’s decisions.

However, we are just hours away from the start date and a review of their website today showed no indication from DEP that any of its processes are in place. There is no online form to complete.  There are no online reports for the public to view the status of waiver requests.

DEP was also supposed to prepare internal processes to prioritize waivers and to insure that all waivers are handled in a consistent and transparent manner.  Again there is nothing available to the public that indicates that DEP has done any of this.  One has to wonder just how transparent a hidden process really is.

Because DEP has not indicated that it is ready to handle these applications and because of the lawsuit filed by 28 environmental and labor organizations, those groups asked DEP to stay the implementation of the rule because none of the procedures had been put in place.  The Appellants also urged the DEP not to create the procedures internally and without the ability to comment on them; but to propose those procedures through the rule making process.  The Appellants further argued that implementation should be delayed until the Appellate Division has had a chance to rule on the lawsuit.    In response to the Appellants request for a stay; DEP denied it.

So, come tomorrow, DEP will be in the business of waiving compliance with regulatory requirements.  It will be interesting to see what form those inevitable applications will take and how DEP will process processing the applications and make decisions  - as they have yet to make public what standards or processes they plan to use.  The only thing that we can be certain of is that any waivers that do come in will most certainly be appealed upon DEP’s issuance.

Past Posts on the Waiver Rule:

Assembly Tells DEP to Waive Goodbye to Waiver Rule

Waiver Rule: One Rule to Rule Them All!

The case that brought about this decision was filed by Des Champs Laboratories, Inc. The property owner sold a property in 1997 after receiving a No Further Action (NFA) from the Department. In 2008 DEP tracked down contamination that it determined was emanating from Des Champs’ property and rescinded the NFA. DEP further required the property owner to proceed with a site investigation, preliminary assessment and, ultimately, to hire an LSRP.

The property owner, however, refused to abide by DEP’s requirements and instead sought DEP’s approval for a de minimis quantity exemption (DQE). The Industrial Site Remediation Act (ISRA) provides for an exception to its applicability if a property owner or operator qualifies as a DQE. Under ISRA an owner or operator qualifies if the following conditions are met:

• The total hazardous substances or wastes on the property does not exceed 500 pounds or 55 gallons; or

• If mixed with nonhazardous substances the total quantity does not exceed 500 pounds or 55 gallons; or

• No more than 220 gallons of hydraulic or lubricating oil in the aggregate.

The applicant, in this case, indicated that, in addition to using only de minimis quantities of hazardous substances they did not use any of the substances found in the ground water. DEP, however, denied their DQE application because “the overlying presumption that an industrial establishment, without regard to fault, should not qualify for a DQE when contamination is known to exist at the site.” This requirement was not in the regulation implementing ISRA, at the time Des Champs DQE application was made but was subsequently added in the 2009 re-adoption of the regulations. It is not in the ISRA statute.

The Court rejected DEP’s rejection – as well as the 2009 regulations – explaining that, ), the Legislature has moved the State to a more streamlined and less burdensome process since the Environmental Cleanup Responsibility Act of 1983 (ECRA). By enacting ISRA the State responded comments that ECRA interfered with the transfer of properties. As part of ISRA the State specifically wanted to “reduc[e] oversight of those industrial establishments where less extensive regulatory review will ensure the same degree of protection to public health, safety, and the environment.” With ISRA the State also wanted to “guard against redundancy from the regulatory process and to minimize governmental involvement in certain business transactions.” The Court then noted that the State continued this trend of “minimizing governmental involvement,” when it passed the Site Remediation Reform Act (SRRA).

The Court ruled that “despite its important regulatory role and its expertise over environmental matters, [DEP] acted in the present context beyond its legislatively-delegated powers. . . .” going too far beyond the requirements set out in ISRA. In short, since ISRA did not require the property to be free of contamination in its DQE requirements, DEP could not add that requirement. The Court believed that requiring property owners to investigate their properties to insure that they are contaminant free was too substantial a burden and counter to ISRA and SRRA’s intent to remove State involvement in these kinds of business transactions.

Since the Appellate Court has stayed its decision for 30 days to allow an appeal to be filed. It is possible that the Supreme Court could overturn this decision

In its decision the Court made a couple of observations that are worth noting. First, although DEP could not compel an applicant to certify the property was clean; that did not mean that DEP was without power to require a cleanup under the Spill Act or other regulation. Second, the Court also seemed to be inviting the Legislature to correct their mistake by passing legislation giving DEP the power it sought to exercise. Lastly, the Court also seemed to be indicating that the subsequent property owner may have contractual or legal rights to compel Des Champs to investigate the property and clean it up.

While it is always possible that the Legislature may give DEP the power it seeks, I think that is highly unlikely as this Legislature has been steadily moving away from protecting the environment and more towards easing restrictions on businesses. The more interesting possibility of compelling cleanups is the rights between the parties. Who would like to buy property that may be contaminated just because the seller may not have been the one to do the contamination or use large quantities of hazardous substances? Purchasers of industrial properties may, in their contracts, require that the seller insure that the property is not contaminated.

I have written about the DEP’s Waiver Rule and why it is bad.  Take a look at Assembly Tells DEP to Waive Goodbye to Waiver Rule, Waiver Rule: One Rule to Rule Them All! for more information on that topic.

Why is Permit Extension Act so bad?    Hasn’t there already been several Permit Extension Acts?  Yes, and I have written about the Permit Extension of 2008 when it was originally introduced.  If we already have it, then why is S743 bad?  It is bad because it is more expansive than the original act.  The original Permit Extension Act was strongly opposed by environmentalist and the final product was the result of strong negotiations between all parties.  The final bill removed from the Act environmentally sensitive areas.    Under NJSA 40:55D-136.3(a), environmentally sensitive areas was defined to include: Planning Areas 4B (Rural Environmentally Sensitive), Planning Area 5 (Environmentally Sensitive) or a critical environmental site, the Highland Regions except for areas designated for growth and the pinelands area except for areas designated for growth.  In these areas the Permit Extension Act of 2008 did not extend permits.

S743 redefines environmentally sensitive areas.  Under the pending bill the definition of Environmentally Sensitive Area does not include either the Highlands Planning Areas or the Pinelands Planning Area.   The bill goes further by adding a definition of “smart growth area” by including all of the Highlands Planning Area as a growth area.  The Highlands Planning Area covers about 450,000 acres of New jersey of which about two-thirds of it is considered environmentally sensitive.  The Planning Area includes Under the Highlands Water Protection and Planning Act, the purpose of the planning area is to:

1. Protect, restore, and enhance the quality and quantity of surface and ground waters therein;
2. Preserve to the maximum extent possible any environmentally sensitive lands and other lands needed for recreation and conservation purposes.
3. Protection and maintain the essential character of the Highlands environment;
4. Preserve farmland and historic sites and other historic resources
5. Promote the continuation and expansion of agricultural, horticultural, recreational and cultural uses and opportunities;
6. Preserve outdoor recreation opportunities, including hunting and fishing, on publicly owned land.
7. Promote conservation of water resources
8. Promote brownfield remediation and redevelopment
9. Encourage, consistent with the State Development and Redevelopment Plan and smart growth strategies and principles appropriate patters of compatible residential, commercial and industrial development, redevelopment , and economic growth, in or adjacent to areas already utilized for such purposes, and discourage piecemeal, scattered, and inappropriate development, in order to accommodate local and regional growth and economic development in an orderly way while protecting the Highland environment from individual and cumulative adverse impacts.

As can be seen from the above list, the main purpose of the planning area was to preserve the area while allowing limited and controlled development. This goal was reinforced by Section 12 of the Statute that provided the regional and local master plan for the preservation area shall include:

 A preservation zone element that identifies zones within the preservation area where development shall not occur in order to protect water resources and environmentally sensitive lands . . .

S743 completely ignores this requirement of the law as it restores and extends permits that may predate the Highlands Act.  The Highlands act specifically provided at all permits would expire within three years of the enactment of the Highlands if construction, beyond site preparation, had not begun.   That means if you had a permit and did not begin meaningful construction prior to August 10, 2007 your permit expired.  Under S743 permits that expired between January 1, 2007 up to the present will be revived.  Permits that have been gone for up to 5 years will now be valid.  Many of these permits would pre-date the Highlands Act and would pre-date any regional master plan and local plan that protects the sensitive areas within the planning area.

It is difficult to rectify the strong intent to protect the Highlands Planning Area with the expanded language in S743.  If this bill passes out of the Senate it will be hard to justify that vote against the 34 Senators that voted in favor of the Highlands Act in 2004.  Hopefully S743 is not passed to in its current form and the Senate stands up for the environment and all of us today.

Please read these related posts:

Waiver Rule:

Assembly Tells DEP to Waive Goodbye to Waiver Rule

Waiver Rule: One Rule to Rule Them All!

Permit Extension Act:

Governor does not veto Permit Extension Act

Enviros seek Governor’s veto of Permit Extension Act

0 to 60- Permit Extension Act passes both houses.

A bullet train that will not stop

Permit Extension Act may not be so extended

New Jersey wants to stop time

The next step will occur on Thursday May 31st when the New Jersey Senate will consider and vote on SCR59, the senate version of the resolution. I expect that it will again pass along party lines.

Once the resolution passes both houses, the legislature will transmit the concurrent resolutions to the Governor and the DEP. The transmittal is only a notice mechanism and the concurrent resolutions do not require the Governor’s signature to become effective. Once transmitted, the DEP will have 30 days to amend the rule or to withdraw the rue. The legislature has this power because the New Jersey Constitution allows the legislature to review any rule or regulation adopted or proposed by an administrative agency. This makes sense because while administrative agencies are part of the executive branch they are exercising power delegated to it by the legislative branch. If the DEP does not amend the rule or withdraw it within the 30 days, then the Legislature can again pass the concurrent resolutions again and upon the second passage, the Legislature will invalidate the rule.

I expect the Senate to pass the SCR, but I do not expect that the DEP will amend or withdraw the rule. That would mean that both houses will have to vote on a concurrent resolution for the second time. It is very unlikely that the vote will occur before they recess at the end of June; which means the second vote will likely occur in September after the Waiver rule is implemented. I wonder whether the DEP will delay the implantation of the rule pending this second vote. If the DEP does not voluntarily delay implantation, I know that the plaintiffs in the litigation over the Waiver Rule will seek a stay of its implementation to give the Appellate Division time to consider the case. For more information on the lawsuit and why the Waiver Rule is invalid, please take a look at my post: Waiver Rule: One Rule to Rule Them All!