A Look Inside the NJDEP's Waiver Rule
By Mary Pat Robbie
Director, Resource Conservation
& Eric Rosina, Director, Environmental
Sevices, ACT Engineers, Inc.
On August 1, 2012 the NJDEP began accepting waiver requests in accordance with Governor Christie’s Executive Order 2. The purpose of the waiver rule is to allow the NJDEP the authority to waive strict compliance with certain Department Rules where the applicant can demonstrate that full compliance would cause one of the following situations: 1) conflict with another DEP, state or federal agency rule; 2) an unduly burdensome task; 3) the net environmental benefit would be adversely affected; or 4) a declared public emergency exists. Understanding when these site specific situations exist can be a daunting task given the complexity and depth of over 40 years of rule implementation and revision by multiple administrations.
As an example, consider the case of remediation of soils within a floodway, or a linear public-use path along a stream. Although these are noble projects with minimal environmental impacts, several layers of regulation can make the environmental regulations unduly burdensome while negating the net environmental
benefits of the project. In their defense, while NJDEP regulations attempt to provide general permits for typical projects, not all situations can be anticipated within the Rule-Making process.
Burlington County’s goal, at the site whose siteplan is shown above, is to construct a linear connection multi-use trail which includes educational areas in the various eco-systems along the trail route. Although this is a noble goal with minimal environmental impacts, several layers of regulation can make the environmental regulations unduly burdensome.
While several waiver requests have been submitted to the DEP, the
number of requests has been substantially less than was originally anticipated. Furthermore, of the submitted requests, many have been rejected due to a failure to provide adequate information. This could be due to a misunderstanding of what the Waiver Rule is or the failure to submit the required documentation as set forth by the NJDEP. Successful applicants should be able to recognize that the Waiver Rule is another tool in the DEP’s toolbox and approach a request much like any other DEP application.
The Waiver Rule It is important to note what the Waiver Rule is and more importantly, what it is not. The Department can only waive NJDEP regulations. The department cannot grant a waiver for requirements imposed by another state department (such as the NJDOT, NJEDA, etc.) or for state statutes or federal/departmental rules which are directly tied to federal requirements for delegated or assumed programs (for example: Wetlands, Threatened and Endangered Species, etc.) Likewise, the department cannot grant a waiver to a State Implementation Plan (SIP) for any federally enforceable program. Applicants should not ask for waivers for air emissions trading programs, numeric standards protective of human health or designation of threatened and endangered species or habitat. The DEP’s waiver rule does not waive remediation funding source requirements as these are administered under NJEDA, or licensure, certification or registration requirements. Finally, the department will not entertain waiver requests to eliminate public notification requirements, fees, or any portion of the Waiver Rule.
In the example of a linear trail referenced, Burlington County’s goal is to construct a linear connection multi-use trail which includes educational areas in the various eco-systems along the trail route. This multiple mile trail system transects agricultural lands, rural communities, forested hillside overlooks, stream corridors and wetland areas and provides multiple environmental stewardship education opportunities for the community.
As the engineer developed the conceptual plans for the project and studied the environmental constraints, a 1,500 linear foot section of the project was identified as the controlling area for the overall project’s success. In this section, the local roadways are elevated above surrounding grades and were found to restrict waterflow under flood conditions. Under the Flood Hazard Regulations, Riparian Disturbance (i.e. tree removal) is limited to 1,000 square feet within the 50’ riparian zone. In addition, while wetland disturbance is unlimited for trails and boardwalks, the no-net fill rule of Flood Hazard would necessitate excavation and regrading of the steam bank within the Flood Hazard Area to account for the displaced volume of the boardwalk in this area creating further disturbance of the eco-system.
The NJDEP indicates that more than 95 percent of permits which are
submitted through the Bureau of Land Use Regulation are ultimately approved as compliant projects. The compliant solution in our example would be to construct the boardwalk that is either: outside the property boundaries and outside the stream corridor or; approximately 10’ above the normal water/ground surface
elevation. However, since both of these options are in direct conflict with the Burlington County’s goals for a linear connection and educational areas within the ecosystem, the approvable project does not meet the established project goals. The county is left to drop the project or rebuild the surrounding roadways adding years and substantial cost to the project. The Waiver Rule presents an alternative in order to achieve the project goals on time and on budget.
Once the basis of the Waiver has been established (i.e. Unduly Burdensome—Zero Net Fill/Riparian Disturbance Threshold (>1,000 SF) in our example, the applicant must provide the appropriate documentation to allow the NJDEP to evaluate the waiver request. Specifically, this information includes:
• Public Notice documentation
• Sufficient Support Information
• Circumstances that support the need for a waiver (complete data and description of the decision process)
• Net Environmental Benefit description
• Verification that the request is
not for a Self-Inflicted Burden
(aka self-imposed hardship)
• Documentation of Consistency
with DEP Core Missions
• Protect human health and minimize environmental impacts
While the DEP does not provide submission guidance within the waiver rule for each of these evaluation criteria, the applicant and their consultants need only look to the underlying rule(s) from which the waiver is being sought to develop appropriate materials suitable for review.
With no provision within the Waiver Rule for any give and take with the department, applicants are well advised to submit all of the administrative and technical information for the permit they are seeking with the waiver request.
In our example, this includes the application materials, environmental report, engineering reports, and design drawings for the ultimate Wetlands and Flood Hazard Area permits. However, the net-fill calculations would indicate the combined volume of the boardwalk and railings proposing no offset compensation via stream bank disturbance. Likewise, the proposed riparian zone vegetation mitigation within the watershed would be calculated but any resultant mitigation may be more wide-spread along the project route instead of adjacent to the disturbance areas. Such an approach demonstrates a net environmental benefit which has a geographic nexus to the impacted resource (i.e. within the watershed).
In short, applicants should be prepared to submit a complete permit application with the waiver request to have the highest and fastest likelihood for success.
By using an on-line system, the NJDEP is attempting to make the waiver process as open and transparent as possible. Submission requirements, permit applications and
their status, and additional guidance are all listed on their website at www.nj.gov/dep/waiverrule/
First Published in New Jersey
Municipalities, Volume 90, Number 1, January 2013