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Christopher D. Ackerman, an associate with Sokol, Behot &
Fiorenzo in Princeton, New Jersey, recently became the first
Attorney in New Jersey to be recognized as a LEED AP (Leadership
in Energy and Environmental Design, Accredited Professional)
by the U.S. Green Building Council. This accreditation is
given by the USGBC to professionals who demonstrate a comprehensive
understanding of green building practices and principles.
Mr. Ackerman received his JD and Masters of Studies in Environmental
Law from Vermont Law School. He works in the Princeton office
with the Firm's Environmental Practice Group.
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Jessica F. Battaglia,
Anthony Bedwell-Coll
and Anthony S. Bocchi have
joined the firm.
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The effective date of New Jersey DEP's proposed Flood Hazard
Area Control Act Rules has been a topic of much concern. The
proposal, which will significantly change the standards for
Stream Encroachment Permits, was proposed on October 2, 2006.
New Jersey's Administrative Procedure Act requires that it
be adopted within one year of the proposal date; otherwise
the proposal will lapse.
Our current understanding is that the Rule adoption will
be signed by the October 2, 2007 deadline, and is scheduled
to become effective on November 5, 2007, the date on which
it is to be published in the New Jersey Register.
The Rules provide that any application which has been deemed
"complete for administrative review" on or before
the effective date will be subject to the current Rules rather
than the new ones. DEP has 20 working days (the rough equivalent
of 30 calendar days) in which to review applications for administrative
completeness. What this means is that applications that are
submitted on or before November 2, 2007, and which are subsequently
deemed to be administratively complete will be subject to
the current Rules and not the new rules. Conversely, any application
found to be administratively incomplete will be subject
to the new rules.
The only way to know for certain that an application is
administratively complete prior to November 2 is to submit
it on or before October 6, 2007. The problem, of course, is
that there may not be sufficient time to correct any deficiencies
in an application if the applicant is made aware of them in
the few days immediately prior to November 2.
All of the foregoing is based on an assumption that the
Rules will be published in the New Jersey Register
on November 5 and will become effective on that date. If,
for any reason, they are signed on or before October 2 but
are not published until a date later than November 5, all
of the timeframes will shift accordingly.
Please feel free to contact Neil
Yoskin of our Princeton Office for further details.
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New Jersey DEP has proposed amendments to its Freshwater
Wetland Protection Rules (N.J.A.C. 7:7A). The proposal, if
adopted, will likely impose significant new regulatory, financial
and paperwork burdens on property owners, developers and on
DEP staff.
The proposal, which was published in the September 4, 2007
DEP Bulletin, is unusual in that it was not disclosed
to or discussed with potential stakeholders. Even the State's
Clean Water Council, which normally has the opportunity to
comment on all such proposals in advance, did not have the
opportunity to do so in this case.
Key features include the following:
- The proposal purports to give local and county planning
boards the authority to require Letters of Interpretation
as an administrative completeness checklist item. While
this makes sense as a matter of general application, it
has the effect of impermissibly amending both the Municipal
Land Use Law and the Freshwater Wetland Protection Act.
- The acreage limit for projects requiring a General
Permit No. 6 for isolated wetland fill, if combined with
other general permits (such as those for road crossings
and utility lines) will be reduced from 1.0 to 0.5 acres.
If the amount of isolated wetlands to be filled exceeds
0.5 acres, then a GP 6 remains available for that fill,
but no other filling can be authorized under a General Permit.
Instead, an Individual Permit will be required. The proposal
indicates that this is in response to a Federal limit of
0.5 acres on Nationwide Permits.
- The proposal calls for monetary compensation for activities
authorized by most General Permits. Compensation equal
to the fractional equivalent of $38,000 per acre will be
required for filling associated with the construction of
one single family home, and the fractional equivalent of
$300,000 per acre for filling associated with all other
development authorized by General Permits. The compensation,
which will be paid into the State's Freshwater Wetland Mitigation
Bank, is intended to achieve no net loss of wetlands (the
proposal indicates that the filling of approximately 100
acres of wetlands is authorized each year either through
General Permits or Individual Permits).
- The proposal will require that General Permit applications
include a plan depicting the extent of wetlands on the entirety
of the property, regardless of the size of the property
or of the amount of proposed disturbance.
- The proposal will require that wetland disturbances
authorized by General Permits be "minimized",
meaning that the applicant must explain to the Department's
satisfaction why the disturbances being proposed could not
be avoided. This will inject Department staff into the
site planning and design process even for minor projects.
Since the average processing time for most wetland permits
is already in the nine month range, the length of time needed
to review and act on new applications can be expected to
increase.
- The proposal codifies the Department's current practice
of requiring new Transition Area applications if a project
has not been constructed during the initial five year permit
period, even in cases where wetland transition area limits
have been deed restricted and recorded.
- The existing rules require a permit modification if and
when a permit is transferred from one party to another,
but the rule has generally not been adhered to or enforced.
The proposal imposes significantly expanded application
requirements for such modifications. It is not clear as
to why a permit modification is required when a permit is
transferred, as opposed to simply requiring that notice
of the transfer be provided to the Department.
- The proposal would amend the penalty provisions in a number
of ways, the most notable of which would be to make the
submission of an incomplete application a violation for
which penalties can be assessed against any person associated
with preparation of that application.
- The Rules requiring the disclosure and assessment of potential
impacts to cultural, archeological and historic resources
have been clarified and expanded.
The complete Rule proposal can be found on the Department's
website (www.nj.gov/dep).
It will be subject to a 60 day public comment period, with
hearings scheduled on three dates in October 2007.
Please contact Neil Yoskin
of our Princeton Office with questions or additional concerns.
NJDEP and DCA Agree to Revised Real Estate Disclosure
Act Procedures
In May 2006, the New Jersey Department of Community Affairs
adopted a policy prohibiting the closing of title to condominium
units on properties undergoing site remediation until New
Jersey DEP issued a No Further Action Letter (NFA). Given
the backlog at DEP’s Site Remediation Program, this
represented a significant impediment to condominium development.
DCA, NJDEP and the development community have now agreed to
a procedure that will allow Public Offering Statement registrations
to proceed and title to units to close, provided that financial
assurances guaranteeing a cleanup are put in place. This is
a departure from existing practice, under which the NJDEP
Voluntary Cleanup Program (as opposed to ISRA or Spill Act
enforcement actions) does not require the posting of financial
assurances. Details are available on the DEP and DCA websites.
DEP Issues “Guidance” on Stormwater Rules
On January 3, 2007, DEP Commissioner Lisa Jackson issued
“Administrative Order 2007-01”. The Administrative
Order includes guidance on how Functional Value Assessments
are to be conducted when development is proposed in the outer
150 feet of a Special Water Resource Protection Area (these
are the water quality buffers that are imposed on either side
of a Category One Water). DEP’s Stormwater Rules, at
N.J.A.C. 7:8-5.5, allow development in the outer 150 feet
of a SWRPA if it has already been disturbed or is in active
agricultural use. The Administrative Order, however, states
that “any encroachment into the outer 150 feet of a
disturbed SWRPA that results in the loss of any functional
value in any portion of the outer 150 feet of the disturbed
buffer shall not be permitted unless it is demonstrated that
the loss is unavoidable through project design including a
reduction in the scope of the development.” According
to the guidance language, disturbances in the outer 150 feet
will always result in a loss of functional value. What this
means, as a result, is that the design and density of a project
will always be subject to revision.
A number of legal challenges have been filed in connection
with the applicability of the AO to specific projects, but
no general legal challenge to its validity has been made.
Flood Hazard Rule Amendments Moving Forward
NJDEP proposed significant new amendments to the Flood Hazard
Area Control Act Rules in October 2006. The Rules will increase
the minimum setbacks from top of bank from 25’ to 50’,
will impose stringent limits on development within 300’
of “Category One” Waters (which include the Navesink
and Metedeconk Rivers and Barnegat Bay), and will impose a
zero net fill requirement throughout the State (the current
standard is 20% except in the Central Passaic River Basin).
All indications are that the Rules will be adopted in late
summer. NJDEP cannot make substantive changes to the rules
without re-proposing them, so it is likely that it will be
adopted largely as proposed.
Public Access Rule Proposal Moves Forward
On November 6, 2006, NJDEP proposed amendments to the Rules
governing public access to beaches and tidal waters. The Rules,
if adopted, could require public access on or across private
property in circumstances where access is not required today.
The Rules will also impose significant obligations on municipalities
to construct and operate parking areas and restrooms as a
condition of shore protection and green acres state aide agreements
in selected circumstances
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Neil Yoskin has been recognized as one of New Jersey's 2007
"Super Lawyers". Super Lawyers are peer selected
from the top 5% of the State's attorneys. Neil chairs the
Firm's Environmental Practice Group.
NJDEP has upgraded the Water Quality Classification of four
stream segments1 in three counties to Category One (C-1).
The stream segments, totaling 12 miles in length, are as follows:
- Beech Brook, West Milford, Passaic County (entire length,
including all tributaries)
- Wanaque River Section, Pompton Lakes, Passaic County
(Wanaque Reservoir Dam to Wanaque Avenue Bridge, including
all tributaries)
- Saddle River Section, Upper Saddle River, Bergen County
(Bergen County Route 2 (Lake Street) bridge downstream to
confluence with Pleasant Brook, including all tributaries)
- Stone House Brook, Butler, Morris County (Valley Road
Bridge to confluence
with Pequannock River)
The upgraded Category One Standards prohibit any discharge
which would result in a measurable change in water quality,
and impose 300 foot wide water quality buffers on either side
of the stream, measured from the top of bank. The full text
of the adoption is published in the New Jersey Register on
October 16, 2006 and can be accessed on NJDEP’s website
at www.state.nj.us/dep.
The Notice of Adoption makes reference to a fifth segment,
“Wanaque River Tributary in Hewitt”, but there
is no reference to it in DEP’s September 19, 2005 proposal.
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Leon J. Sokol, the founding partner of Sokol, Behot &
Fiorenzo, a law firm with offices in Hackensack and Princeton,
has been elected co-chairman of the American Society for the
Protection of Nature in Israel, an environmental advocacy
group that promotes conservation and eco-tourism.
“Israel has the largest concentration of bird migrations
in the world,” Sokol said. “Maintaining habitats
for these birds has significant ecological importance. We
want to encourage visitors to see firsthand the breathtaking
wildlife and one-of-a-kind nature preserves.”
With a population of 6 million, Israel is faced with challenges
that are not uncommon to the 8.3 million New Jerseyans, who
are also struggling to balance development with conservation.
The Society for the Protection of Nature in Israel was formed
in 1953 and has grown into Israeli’s major environmental
advocacy and education group. With support from its American
counterpart, the SPNI has won landmark environmental achievements,
including the Coastal Law, a national law that forbids development
within 300 meters of the coastline, and the creation of Ayalon
Park in Tel Aviv.
In addition to its environmental benefits, SPNI provided
support during this summer’s war with Lebanon, allowing
soldiers, children and displaced families to set up camp in
field service centers across the country. Approximately 20,000
children and more than 200 families were given refuge. SPNI
provided a full range of activities, including, educational
sessions, hikes, exploration tours and other diversions.
Sokol, a member of the ASPNI board of directors for the last
12 years, has a long and distinguished history as an environmental
rights champion. He received his Bachelor’s Degree in
chemical engineering from Rensselaer Polytechnic Institute
and an MBA from New York University before graduating from
Seton Hall University with a law degree. Sokol founded the
firm in 1975. He opened a Trenton office in 1981 to deal exclusively
with environmental issues. The firm continues to have a substantial
environmental law practice in Hackensack and Princeton.
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August 29, 2006 -- NJDEP will, in the first week in September, propose new rules under the Flood Hazard Area Control Act. The Rule proposal, which was rolled out at an August 22 press conference, represents a major overhaul of the current rules, which were adopted in 1984. Unlike major rule initiatives in the past, interested parties have not been given the opportunity to comment prior to the proposal, but the draft (available on DEP’s web site) indicates that there will be at least a 90 day public comment period.
The proposed changes are far too numerous and comprehensive to summarize here, but the following major changes are noteworthy:
- The proposal calls for vegetated stream buffers (referred to as “riparian zones”) ranging from 50 to 300 feet in width from the top of the bank (the current rules provide setbacks of either 25 or 50 feet). Riparian zones adjacent to Category One waters and their upstream tributaries will be 300 feet wide. Riparian zones along all trout production and maintenance and trout maintenance waters and their upstream tributaries within one mile, along streams flowing through areas that support certain threatened and endangered species and waters that flow through acid producing soils will be 150 feet wide. Riparian zone along all other waters will be 50 feet wide. Limited opportunities for development within those zones will be available.
- The 20% net fill limitation in the existing rules is being abandoned and replaced by the zero net fill provision now applicable only in the Central Passaic River Basin. And unlike the current zero net fill rules, all flood storage compensation must be made within the same flood hazard area and watershed as the proposed fill location.
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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
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