by Richard G. Scott, Esq.
Over the past several years, the New Jersey Department of Environmental Protection (NJDEP) has been working to streamline and standardize the land use permitting programs administered by the Division of Land Use Regulation. Beginning in 2015, NJDEP consolidated its Coastal Permit Program Rules and the Coastal Zone Management Rules into one chapter, the Coastal Zone Management (CZM) Rules, codified at N.J.A.C. 7:7.
NJDEP amended its Flood Hazard Area (FHA) Control Act Rules in 2016 and its Freshwater Wetlands (FWW) Protection Act Rules the following year. Subsequent, revisions to the three programs occurred in 2018 to further standardize the language. While there were a multitude of changes to each of the three regulatory programs, this article focuses on two areas that impact the ability to apply for and obtain permits.
When it comes to who can apply for environmental permits, the old rules limited the applicant to either the owner of the site or the owner’s agent. The FWW Rules stipulated that an individual with the legal authority to perform the regulated activity would also be authorized to submit a permit application.
The rule amendments now apply the FWW’s “legal authority” language to the FHA and CZM Rules, making it more explicit that applicants proposing a project may submit an application on their own behalf so long as they have the owner’s consent. The rule amendments also allow public entities proposing an activity within a right-of-way or easement that is held or controlled by that entity, or that will be appropriated by that entity under the power of eminent domain, to also file an application for a permit.
Ultimately, if you are seeking to submit an application for a project on property you do not own, the rules require that you have the landowner’s consent before submitting the application. Similarly, if your project would impact an easement or right-of-way, you must also have written consent from the holder(s) of that easement or right-of-way. The rules have also been amended to clarify what constitutes written consent if the proposed project is a gas pipeline located within a municipally owned right-of-way.
Although these changes and clarifications are minor, the way the NJDEP enforces the rules can have a big impact on your project’s schedule. While it seems obvious that you can’t construct on someone else’s property until you have a written agreement in place, the NJDEP has made it clear that one of the purposes of the landowner consent rule is to ensure that the NJDEP is not wasting its time reviewing submissions by applicants that do not have the necessary authority to conduct the proposed activity.
Generally, consent is obtained by having the owner sign the Owners’ Certification on the LURP Form when an application is submitted. In recent years, the NJDEP has been taking a much harder look at applications to determine whether an applicant has obtained landowner consent, and may “kick” your application for being administratively incomplete if you have not obtained the required consent.
At Rutter & Roy, we work with clients in connection with their environmental permit applications and have developed proven strategies to address the landowner consent requirement. For instance, in our experience landowners are less likely to sign the LURP Forms. Our firm has developed landowner consent letters that applicants can use in lieu of obtaining signed LURP Forms. These consent letters allow you to submit the permit application and get it reviewed, while reserving the landowner’s ability to negotiate for the necessary land rights in the future.
Holding Public Hearings
Another important change has been to the rules pertaining to the NJDEP’s authority to hold public hearings. Besides the public hearings now being called “fact-finding” meetings, the NJDEP has given themselves greater flexibility by eliminating some of the specific requirements that were originally set forth in the FWW Rules.
For instance, the old FWW Rules constrained the NJDEP to publishing notice of public hearings early in the permitting process. If the NJDEP determined that a public hearing should be held on an application, it was required to publish notice of the hearing within 60 days of finding the application administratively complete. Under the new rules, the NJDEP simply must hold a fact-finding meeting if, based on public comments received and/or a review of the scope and/or environmental impact of the proposed project, the NJDEP needs additional information that can only be obtained through a fact-finding meeting.
Rutter & Roy recommends taking a more proactive approach to permitting. For clients that are proposing major developments that are likely to garner a significant amount of public comment and/or opposition, we advise them to submit a robust permit application and request a fact-finding meeting in their application cover letter. This is due to the fact that NJDEP often decides to hold public hearings late in the permitting process, which can lead to delays in the issuance of permits and to the start of construction. By requesting the hearing early, you are paving the way for a smoother application process.
Richard G. Scott, Senior Associate, joined Rutter & Roy in 2011. He has experience in pipeline law, condemnation, environmental law and real estate law. Rich handles complex Green Acres diversions, permitting issues, land and water conservation conversions, condemnations and various litigation matters.