Several months after the state approved a controversial rule allowing property owners and developers to request waivers from state environmental regulations, only 15 such requests have been accepted for review.
Department of Environmental Protection officials said the waiver rule, which allows developers, homeowners and business owners to request that the agency waive any of 124 major environmental regulations provided certain conditions are met, was an effort to reduce red tape.
Environmental advocates, however, warned that the rule could unlock a torrent of applications that, if approved, would weaken efforts to protect ecosystems.
Since Aug. 1, when the rule went into effect, 19 applications have been filed, four of which were rejected for being incomplete. The state has yet to approve a single waiver, only to accept the requests for review. The state has broad criteria for how those requests might be reviewed and states on its website that the rule is not meant to “routinely circumvent any department rule.”
The broad categories under which a waiver can be requested include “unduly burdensome,” “conflicting rules,” “net environmental benefit” and “public emergency.” The state also bars waivers under 12 specific guidelines, namely those requests that want to circumvent federal law or those regulations pertaining to human health, air quality, and threatened and endangered species.
“When we adopted the waiver rule, we stated very strongly that this was not a get-out-of-jail-free card, that this would be something that we would be very carefully scrutinizing,” said DEP spokesman Larry Hajna. “Based on the numbers that we’re seeing, contrary to the environmentalist predictions that the end of the world was coming, the numbers are showing that this program is working as intended.”
Shortly after the DEP approved the rule, several environmental and labor groups sued the state to try to block it.
The groups, including the New Jersey Sierra Club, the New Jersey Environmental Lobby and the Teamsters, argued that the rule was so vague no one could tell which applications would be approved and which would not. Those applying for a rule waiver could just cite an “excessive cost” or say the regulation they wanted waived was “unduly burdensome,” the groups wrote in the lawsuit.
That suit, which heads to court again next month, is the reason Sierra Club director Jeff Tittel thinks there have been so few applications.
“I expected it would be slow because we have a couple of court challenges,” Tittel said of the number of applications. “People who come in and build with a waiver and the DEP loses the case and suddenly they are in violation of the law.”
In a review of the waiver applications, The Press of Atlantic City found that all of the requests fell into three categories: waivers for building in coastal areas, waivers for building in floodplains and waivers to alter how a developer is required to remediate contaminated soil.
Tittel said the number of requests involving waterfront-development rules was notable in light of the damage that occurred during Hurricane Sandy, saying the state should not be encouraging development in coastal areas that exceeds the current rules because of flooding risks.
“You almost have to wonder, for some of those along the coast seeking waivers, do those properties even exist now?” he said.
Some municipalities, including Egg Harbor Township, supported the waiver rule as a way to help residents and developers navigate complex environmental regulations that, in some places, overlap and take years for permits.
The township already has multiple layers of strict regulations because of land either being labeled as coastal resource or in the pinelands, but so far, no one has filed a waiver request. Township Adminsitrator Peter Miller said he was unaware of whether any developers were considering the option. Commercial development has remained low, and residential development requests have held at a steady pace for the past several years, Miller said.
Of the requests that have been accepted for review, nine are in Cape May or Ocean counties. Those requests fall under two categories: homeowners or businesses wanting to build or alter their docks, or developers wanting to build houses where rules state that new development must be water-access focused.
One request was filed by the Snug Harbor Marina in Lower Township because regulations to preserve shellfish habitat do not allow the marina to expand. Another request, by a homeowner in Stone Harbor, wants regulators to permit a larger dock because the property historically has had a dock of similar or larger size.
Maeghan Brass, a conservation advocate with the New Jersey Audubon Society, said her organization was reviewing all of the waiver applications to see whether the requests, if granted, would have any additional effect on habitat for threatened or endangered species. The review is still under way, Brass said, and while some of the parcels involved may have threatened or endangered species living there, the habitat “may or may not be impacted by the waiver.”
While many of the requests seemingly are trying to navigate numerous regulatory hurdles, one request in Passaic County is asking permission to alter how the owner is required to clean up contaminated soil. Rather than remove two feet of soil on the entire property, the petitioner asks to cover the property with two inches of clean soil. The difference would be about one-tenth of the cost, the petitioner wrote in the request.
However, the property is in a floodplain, which means there is a risk that the property could be inundated.
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