By Michael A. Smith

On June 29, 2011, the Appellate Division of the New Jersey Superior Court released its opinion In the Matter of the Adoption of N.J.A.C. 7:15-5.24(b) and N.J.A.C. 7:15-5.25(e), upholding certain key provisions of the New Jersey Department of Environmental Protection’s Water Quality Management Planning Rules (WQMP Rules), N.J.A.C. 7:15 et seq. (namely, a provision that prohibits the extension of sanitary sewer lines in environmentally sensitive areas, and a provision that sets a maximum nitrate level for septic system discharge).  In so holding, the court rejected a developer’s argument that the WQMP Rules constitute unauthorized land use regulation, in excess of NJDEP’s authority. 

Among other things, this ruling provides “teeth” to NJDEP’s pending sewer service area revision process, i.e., NJDEP’s efforts to prohibit the building of new sanitary sewer lines based on the presence of environmentally sensitive features (including threatened and endangered species habitat, Natural Heritage Priority Sites, Category One riparian zones and wetlands).   » Read the rest of this entry «

By Joseph J. Whitney, Esq.

On January 16, 2010, the New Jersey legislature adopted a bundle of laws to promote renewable energy development in New Jersey.  Among the laws adopted was an amendment to the Agricultural Retention and Development Act (the “Act”) to permit the installation and operation of biomass, solar or wind energy generation facilities on preserved farmland.  A preserved farmland is a farm in which the landowner has conveyed a development easement to the State Agricultural Development Committee (“SADC”) or other governmental instrumentality, such as a county, or to a private not-for-profit entity, such as a land trust.  By conveying a development easement to the SADC or such other entity, the landowner covenants that the preserved farm will only be used for agricultural purposes.  This restriction runs with the land and is binding on all future owners of the property. » Read the rest of this entry «

By Glenn S. Pantel and Michael A. Smith

On March 24, 2010, the Commissioner of the New Jersey Department of Environmental Protection issued Administrative Order No. 2010-03 – a measure that extends the deadline for wastewater management planning entities to submit revised wastewater management plans (WMPs), until April 7, 2011.  This administrative order also provides property owners with new rights in connection with NJDEP’s wastewater management planning process.

Background

WMPs are legally binding documents that govern where new sanitary sewer lines can be built. For a sewer line to be extended into a property, it must be included within the sewer service area (SSA) in the area wide WMP. Properties that fall outside the SSA are generally required to be served by septic systems. » Read the rest of this entry «

Although the Site Remediation Reform Act (SRRA) gives Licensed Site Remediation Professionals (LSRPs) substantial authority once the exclusive purview of NJDEP, not all of the functions held by NJDEP case managers under the pre-SRRA process for remediation will be transferred to the LSRP.  Such is the case with Alternate Remediation Standards (ARS).  An ARS is a remediation standard developed for use at a given site based on site-specific conditions and risks that is often less restrictive than adopted standards.  One of the laws modified by SRRA continues to allow the use of ARS in lieu of the established minimum soil remediation standards for residential or non-residential use.  » Read the rest of this entry «

Currently, NJDEP requires a biennial certification for engineering and institutional controls.  Every two years, a certification must be prepared, signed and submitted to NJDEP reporting on the monitoring, inspection and maintenance for caps, covers, fences, signs, Classification Exception Areas (CEAs), deed notices and other engineering and institutional controls implemented as part of the remediation of a contaminated site.  Under the Site Remediation Reform Act (SRRA), NJDEP will now be implementing a new permit program for this purpose.  NJDEP is wrestling with the best way to move forward with the transition of these requirements into a permit program. » Read the rest of this entry «

The Department of Environmental Protection is proposing amendments to the Coastal Permit Program rules, N.J.A.C. 7:7, which contain the coastal general permits and the permits-by-rule.  Under this proposal, the Department is proposing a new permit-by-rule and two new coastal general permits for the construction of wind turbines on land; a new permit-by-rule for the construction of solar panels; and is describing the situations in which construction of a wind turbine or solar panel does not require a coastal permit. The Department is also proposing amendments to the Coastal Zone Management rules, N.J.A.C. 7:7E, to facilitate the construction of wind turbines in the coastal zone in appropriate locations. » Read the rest of this entry «

By Ellen Radow Sadat, Esq.  &  Joseph Schmidt, Esq. 

The New Jersey Department of Environmental Protection (”DEP”) is taking another weapon out of its abundant arsenal, which may make it harder to implement reasonable remedial actions and delay cleanups.  Under draft guidance, titled “Requirements for Remedial Actions Rendering Properties Unusable,” issued on October 5, 2009, DEP plans to implement a seemingly innocuous provision of the Site Remediation Reform Act (“SRRA”): » Read the rest of this entry «

There are two significant provisions in the Site Remediation Reform Act (SRRA) that will impact how NJDEP pursues its claims for Natural Resource Damages (NRD). The first is a fairly obvious change to existing law (the Statute of Limitations) setting deadlines for the state to bring a claim for NRD.  The second, and more significant provision, stems from a subtle reference nestled amid NJDEP’s newly defined powers of direct remedial oversight.  » Read the rest of this entry «

Based on recent studies on indoor radon and lung cancer, the World Health Organization is recommending that homeowners remediate radon levels that exceed 2.7 picocuries per liter (pCi/L).  WHO’s prior threshold  — and the U.S. Environmental Protection Agency’s current recommended action level –  is 4.0 pCi/L.   According to WHO, radon is the second cause of lung cancer in the general population, after smoking, and epidemiological studies have provided convincing evidence of an association between indoor radon exposure and lung cancer, even at the relatively low radon levels commonly found in residential buildings.   » Read the rest of this entry «

By Ellen Radow Sadat, Esq.

If you own real property in New Jersey that is not fully developed, Wastewater Management Plans (WMPs) currently being prepared this Fall by county governments (or NJDEP in the case of plans for Bergen, Burlington, Passaic, Union and Warren counties) may adversely impact the value of your property and its development potential.  WMPs establish Sewer Service Areas which identify the properties that will be served by wastewater treatment systems.  Properties such as corporate campuses, educational campuses, industrial parks, golf courses, residential developments, or vacant land that are currently within a Sewer Service Area could be re-designated to a non-Sewer Service Area, drastically devaluing the property, potentially impacting financing, and effectively eliminating future development options. » Read the rest of this entry «

One of the most significant obstacles to economic growth and development in New Jersey has gone largely unnoticed and if not properly addressed, could jeopardize commercial, residential and industrial growth, and undermine New Jersey’s hope for future economic stability and vitality.  Amendments to the Water Quality Management Planning Rules in 2008 have resulted in an overall shift in how water resource planning is implemented throughout the state.  The new rules are designed to shape development patterns in New Jersey through the designation of sewer and nonsewer waste water disposal areas.  The serious impact of the rules is only now coming to light with the Department of Environmental Protection’s (DEP) introduction of a proposed, dramatically revised Sewer Service Area Maps.  The new maps, currently in draft form, are substantially different than the current maps, removing many undeveloped or partially developed properties from current designations as Sewer Service Areas.   The bottom line is that many properties that are not fully developed, such as golf courses, educational campuses, industrial parks and corporate campuses that are currently within a Sewer Service Area would be redesignated to a non-Sewer Service Area, drastically devaluing the property, potentially impacting financing and effectively eliminating future development options.  Many of the map changes directly conflict with municipal zoning ordinances, master plans and even approved General Development Plans, removing key components that will have a critical impact on a municipality’s fiscal health and in some cases drive N.J. corporations that have purchased sufficient land for future growth around existing facilities to look to relocate outside of the State. 

» Read the rest of this entry «