New Jersey developers should be prepared for environmental permits to take longer amid the coronavirus (COVID-19) pandemic. Under Executive Order 136, Gov. Phil Murphy suspended the New Jersey Department of Environmental Protection’s (NJDEP) 90-day deadline for making decisions on environmentally-related construction permit applications. This includes permit applications for developments in coastal areas, flood zones, CAFRA areas, and wetlands.
“New Jersey’s public health emergency impacts the ability of public and private sectors to meet deadlines for the issuance or denial of permits, as well as certain environmental reporting,” Gov. Murphy said in a press statement. “Today’s order enables the DEP to consistently conduct full and complete environmental reviews while maintaining its core mission of protecting the public health, safety, and the environment while ensuring a robust public participation process.”
Extension of NJDEP’s 90-Day Deadline During COVID-19
Pursuant to N.J.S.A. 13:1D-32, the NJDEP must typically act on an application for a construction permit within 90 days, or the application is deemed approved. Other environmental laws also contain similar deadlines, which if not met, result in automatic approval. For instance, pursuant to Coastal Area Facility Review Act (CAFRA) (N.J.S.A. 13:19-8), the NJDEP must issue a notification to a permit applicant in writing regarding the completeness of its application within 20 days of receipt and present the application for public comment within 15 days and no more than 60 days after the application is declared complete. Once deemed complete, the NJDEP has 90 days to issue a decision or the application will be approved automatically.
Executive Order 136 notes that COVID-19 and its resulting restrictions have forced the NJDEP to alter its operations. “A public health emergency such as the COVID-19 pandemic, and especially my direction to strictly observe social distancing practices, including avoiding all non-essential travel, working remotely, and prioritizing addressing immediate public needs, including protecting public health, safety and the environment, is an impediment to compliance with the statutory timeframes,” Gov. Murphy states. The executive order also concludes that strict enforcement of these timeframes could “prevent DEP from conducting a full and complete environmental review, which would be detrimental to the public welfare.”
Accordingly, all timeframes governing public notice, review, or final action on applications for, or renewals of permits, registrations, plans, petitions, licenses, rates, and other approvals under the following statutes administered by NJDEP are tolled: Construction Permits Law (N.J.S.A. 13:1D-32); Coastal Area Facility Review Act (N.J.S.A. 13:19-8); Utility Property Transactions (N.J.S.A. 48:3-7); and Stream Cleaning Act (N.J.S.A. 58:16A-67). The tolling began retroactively on March 9, 2020, and continues for each day during the Public Health Emergency declared by Executive Order No. 103 (2020). Executive Order 136 further provides that no request submitted pursuant to any of these statutes will be deemed complete or approved for failure to act within the prescribed timeframe.
Additional Provisions of Executive Order No. 136
The Executive Order also includes several other deadline extensions related to environmental matters: They include:
- Extending deadlines for the registration of soil and fill recycling businesses under the Dirty Dirt Law , N.J.S.A. 131E-127.1, by the number of days of the Public Health Emergency declared in Executive Order No. 103 (2020) plus an additional 60 days.
- Extending the July 1, 2020 deadline for the governing body of each municipality to submit its yearly recycling tonnage report to NJDEP by 60 days.
- Extending the August 1, 2020 deadline for recyclers, manufacturers, collection locations and local government units who collect electronic devices to submit their semiannual report to NJDEP by 60 days.
- Directing the NJDEP to identify where public comment periods must be extended to ensure adequate public participation.
Executive Order 136 took effect immediately and will remain in effect until revoked or modified by the Governor. It directs the NJDEP to issue an Administrative Order that extends the regulatory timeframes to accept public comment on applications for, or renewals of permits, registrations, plans or other approvals where necessary to ensure adequate public participation.
While Executive Order 136 effectively means that there are currently no statutory deadlines in place under the covered statutes, it does require the NJDEP to continue to review all applications within applicable timeframes to the “maximum extent practicable.” In statements to NJ Advance Media, NJDEP Chief of Staff Shawn LaTourette confirmed that while Executive Order 136 is needed to give the NJDEP greater leeway when progressing through the permitting process, the agency intends to stay as true to the original 90-day deadline as possible.
If you have questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, John M. Scagnelli, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.