Environmental Permitting: What You Need To Know

November 26, 2019

Our What You Need to Know series continues with Richard Scott as he shares his
insights about securing environmental permits in New Jersey.

Q. Does environmental permitting occur at the state or federal level?

A. Environmental permitting can occur at both the state and federal levels, but includes state permits and approvals as well as federal delegated authorizations. Specifically, the New Jersey Department of Environmental Protection (NJDEP) is in the unique position of issuing several federal authorizations, including both the Section 401 and Section 404 permits under the Clean Water Act (CWA), 33 U.S.C. §§1341(a) and 1344(g), and consistency determination under the Coastal Zone Management Act, 16 U.S.C. §1456(c). Interestingly, New Jersey and Michigan are the only states to have formally assumed the duties of the CWA Section 404 permitting program. 

Q. What is the most effective way to secure environmental permits in New Jersey?

A. The key to securing environmental permits here is to perform your due diligence and project siting upfront to determine what regulated features would be affected and whether those impacts can be avoided or minimized to the greatest extent practicable. This exercise should be done before seeking regulatory approvals (such as from the Board of Public Utilities or the Federal Energy Regulatory Commission).

Q. How has the environmental permitting process in New Jersey changed over the past five years?

A. The NJDEP has been strictly enforcing its rules over the past five years due to all the permit appeals filed by groups that oppose fossil fuel projects. For example, in 2014, the NJDEP started requiring 100% survey access for interstate natural gas pipeline projects. This rule allows the NJDEP staff to get access to a site crossed by a project and confirm the presence (or absence) of regulated features. 

Since at least 2015, NJDEP has been requiring that an applicant have the regulatory approval in hand before it will issue permits. Even though each permit comes with a standard condition allowing for issuance conditioned on receipt of all necessary federal and state permits, the NJDEP no longer wants to go out ahead of the regulatory approval.

In 2017, the NJDEP started requiring landowners and easement holders affected by a project that has regulated features to sign the permit application. We have developed strategies to provide evidence of consent to proposed project activities to satisfy this requirement. 

Finally, if a project is controversial (i.e., there is a significant degree of public interest), the NJDEP will hold a fact-finding meeting. The NJDEP will look to see if there are written requests for a meeting and will consider whether the issues raised in the meeting requests are relevant to the application. The NJDEP will also hold a fact-finding meeting if it determines that, based on either the public comments received and/or a review of the scope and/or environmental impact of the proposed project, additional information is necessary to assist in its evaluation of the potential impacts, and that this information can only be obtained through such a meeting. After the hearing and the post-hearing comment period, the applicant is expected to prepare a comment and response document to assist the NJDEP responding to with the comments received in connection with the application. 

Q. What is the most important thing an applicant can do to support their permit application? 

A. Get the best consultants on your team — those who have relevant recent experience with permitting projects in New Jersey. Your consultants should understand NJDEP’s policies and requirements, and how the NJDEP has applied the rules recently. If you don’t retain the right consultants, you will not be giving your project the best chance of getting the necessary permits to build the project and put it into service. In the process, you would be creating a bad permitting record, and possibly a bad precedent. 

Q. How much time should I allocate for the permitting process?

A. Planning for environmental permits should begin at the siting and design stage of the project to ensure that permits can be attained. Once you have determined that the wetland impacts have been avoided and reduced to the greatest extent possible and the acreage impacts are consistent with other projects for which the NJDEP has issued permits, you must then determine the best time to apply, taking into consideration the Section 401 Clean Water Act clock and state regulatory clocks (FHA and WFD hve 90-day clocks with one 30-day extension). 

Careful attention to detail early in the permitting process helps prevent challenges, expense, and headaches later on. Rutter & Roy can help you develop a realistic permitting schedule and identify all risks to that schedule, along with ways to manage those risks. The ultimate goal, of course, is to get your project over the finish line.