FEMA Announces Release Dates For Digital Flood Insurance Rate Maps (DFIRM’s)

June 18, 2013 | No Comments
Posted by Michael J. Gross

In a recent regulatory update, FEMA has announced its projected release dates for its Digital Flood Insurance Rates Maps (DFIRM’s), with the schedule being broken down by county. Below are the release dates for each county:

Atlantic County: September 30, 2013
Bergen County: September 30, 2013
Cape May County: October 31, 2013
Essex County: August 16, 2013
Hudson County: July 31, 2013
Mercer County: May 30, 2013
Middlesex County: July 26, 2013
Monmouth County: July 26, 2013
Morris County: July 31, 2013
Ocean County: August 16, 2013
Passaic County: July 31, 2013
Salem County: August 30, 2013
Somerset County: July 12, 2013
Union County: TBD

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FEMA Maps Rollout Delayed: Release Scheduled For End Of June 2013

June 5, 2013 | No Comments
Posted by Michael J. Gross

FEMA working maps were supposed to be rolled out by the end of May. These maps precede the formal draft flood elevation maps, which initiate a formal comment period to FEMA. Instead, we are advised that these maps will roll out at the end of June. Once these working maps are released, they will be the flood elevation that NJDEP will use for regulatory purposes. They should correct some of the major errors in the Advisory Base Flood Elevation Maps published in December 2012. Through this blog, we will advise when these working maps are available for different counties.

Category: FEMA, Super Storm Sandy

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Appellate Court Upholds NJDEP Decision to Remove Park From ROSI

June 3, 2013 | No Comments
Posted by Michael J. Gross

On May 29, 2013, the Appellate Division determined that the DEP appropriately allowed the removal of the Robert J. Miller Air Park from Ocean County’s Recreation and Open Space Inventory (“ROSI”). The Pinelands Preservation Alliance and New Jersey Conservation Foundation, represented by the Eastern Environmental Law Center, appealed from the NJDEP action authorizing amendment of the ROSI to remove the Robert J. Miller Air Park. The parcel is used mainly as an airport and comprises approximately 934 acres.

Any property acquired with Green Acres funds is automatically part of the ROSI. There are strict limitations on use of properties on the ROSI and on divestiture of those properties. Read more

Category: Appellate Court, NJDEP

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Michael J. Gross to Moderate Panel, “Financing the Sandy Rebuild”

May 30, 2013 | No Comments
Posted by Michael J. Gross

Shareholder Michael J. Gross will act as moderator for the upcoming panel entitled “Financing the Sandy Rebuild,” to be held Tuesday, June 18, 2013 at 9:30a.m. at the Jumping Brook Country Club in Neptune, NJ.

The panel will focus on how, under the Sandy Action Plan, property owners will be able to finance the rebuilding and repairing of their residential properties. The panel will feature D.C.A. Commissioner, Richard Constable, III, as keynote speaker and is sponsored by the New Jersey Builders Association. For more information, or to register, please click here.

Category: GH&C

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Signing A Deed Of Dedication And Perpetual Storm Damage Reduction Easement. Is It Right For You?

May 23, 2013 | No Comments
Posted by Paul H. Schneider

Towns up and down the New Jersey Shore are pressing oceanfront property owners to sign a Deed of Dedication and Perpetual Storm Damage Reduction Easement (Easement), asserting that the United States Army Corps of Engineers requires these Easements as a prerequisite to performing dune and beach restoration. Here are a few comments on the proposed Easement recently posted on Brick Township’s website. Read more

Category: Easements, Hurricane Sandy

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Super Storm Sandy Environmental Law Update

May 17, 2013 | No Comments
Posted by Steven Corodemus

The impact of Super Storm Sandy will be felt for many years. The New Jersey State Legislature appears eager to share the stage of leadership with Governor Christie by enacting new laws to assist in recovery efforts but also to plan for the future.

NJ DEP adopted emergency regulations to facilitate shore rebuilding as previously reported on April 22^nd’s Environmental Law Blog by Michael Gross, Chairman of the Environmental Law Department. See http://www.njenvironmentlaw.com/emergency-coastal-regulations-issued-by-njdep

On April 25, 2013 the NJ State Senate Environment Committee (SEN) passed a package of “Sandy” bills. Unfortunately the Assembly Environment Committee (AEN) took up only two of the bills at its May 13^th meeting.

S2598 (Smith/Whelan) Passed SEN 5-0 & AEN 6-0. Flood elevation standards. Creates limited exemption from local land use restrictions to allow existing structures to be raised to new FEMA base flood elevations. Read more

Category: FEMA, NJDEP, Super Storm Sandy

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NJDEP Issues Guidance Document for May, 2014 Remediation Deadline

May 15, 2013 | No Comments
Posted by Marc D. Policastro

NJDEP has issued a new “Guidance Document”, detailing requirements for satisfying the State’s requirement that “Remedial Investigations” be completed by May 7, 2014. The Department confirms that the deadline applies to contamination identified, or which should have been identified, on or before May 7, 1999.

Media included in the requirement are soil, groundwater, surface water, sediment and air. There is not an exemption where contamination has migrated onto a site from another contaminated property. However, under current NJDEP regulations, responsible parties will not have liability where it is demonstrated that contamination is from an off-site source. The Department is currently developing a Guidance Document to address proofs necessary to document off-site sources.

Significantly, the new Guidance Document also allows professionals to use “professional judgment” to determine whether sufficient information exists to prove the nature and extent of contamination under applicable NJDEP regulations. The State has also reconfirmed that delineation of contamination to the “clean zone” is needed in order to justify issuance of final approval in the form of a Response Action Outcome.

Category: NJDEP

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Court Clips Highlands Council’s Wings, Upholds Exemption

May 15, 2013 | No Comments
Posted by Paul H. Schneider

In the latest chapter in a long-running saga over a JCP&L substation in the Highlands Preservation Area, the Appellate Division of New Jersey Superior Court affirmed the DEP’s authority to approve an exemption from the Highlands Act notwithstanding an adverse recommendation from the Highlands Council. The Highlands Act includes certain exemptions from the Act, the Highlands Regional Master Plan, any rules or regulations adopted by the DEP, including an exemption for certain public utility lines, rights-of-way, and system upgrades “provided that the activity is consistent with the goals and purposes of this act “. The statute calls the DEP to determine when the exemptions apply through the Highlands Applicability Determination (HAD) process.

The DEP granted an exemption for the substation subject to certain conditions, including Highlands Council approval of a landscaping plan that uses native plant species to screen the substation from adjacent homes and roadways and complement the character of an existing historic district. The Highlands Council’s review went far beyond that, and concluded that the substation project was not consistent with the goals and purposes of the Highlands Act. The DEP rejected the Highlands Council’s recommendation and upheld the exemption.

A local citizens group appealed, and the Appellate Division upheld the DEP’s decision. Emphasizing that it is the DEP, not the Highlands Council, that has authority to decide Highlands Act exemptions, the court agreed with the DEP that “the Council exceeded its mandate in issuing a ‘recommendation’ that the exemption did not apply.” The court concluded that the DEP was not required to defer to that recommendation.

Category: NJDEP

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The War On Property Owners Refusal To Execute Easements For Sand Dunes Are Heating Up Down The Shore

May 9, 2013 | No Comments
Posted by Afiyfa Ellington

Several municipalities located along the Jersey Shore are putting pressure on various property owners to grant easements to permit dunes to be constructed on their properties. By way of example, Long Beach has publically posted names of several homeowners who they believe have inappropriately refused to execute the easements. Toms River has expressed the fact that they will assert continual pressure on residents who have not executed easements. Municipalities seek to construct these dunes in order to protect the coastline and communities from storm damage.

On the other side of the battle, homeowners complain that the higher dunes could block their views of the ocean. Other homeowners have concern over a potential taking of property without just compensation, contrary to the municipalities’ position that the dunes provide a public benefit and a benefit to the homeowner. Some homeowners have concern that the grant of the easement could eventually result in the construction of restrooms, boardwalks and other public facilities on their land, despite the fact that municipalities have expressed that the easements only permit the construction of dunes.

Category: Environment, Hurricane Sandy

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Bill To Strengthen Role Of Administrative Law Judges Advances

May 3, 2013 | No Comments
Posted by Steven M. Dalton

Characterization of the adjudicatory hearing process in the context of challenging agency decisions, including decisions of the New Jersey Department of Environmental Protection, as a “kangaroo court” is certainly cynical, and may be unwarranted, but it is not an uncommon response when individuals whose rights are affected learn that the decision of an administrative law judge (“ALJ”) is not a final, binding decision, but may be overturned by the head of the agency that issued the initial negative decision. Affected individuals are often dissuaded from pursuing their rights to challenge administrative decisions through a hearing process after learning of the seemingly Pyrrhic nature of the process: they may obtain a favorable decision from an ALJ only to have it overturned by the agency head, and be left to incur additional costs pursuing an appeal of the agency head decision in the Appellate Division.

A bill, A1521, recently advanced through the State Assembly that would strengthen the decision making authority of administrative law judges. The bill, which passed 73-1, provides that the decision of an ALJ in contested administrative proceedings would be final upon the filing of the decision with the agency for certain agencies including the DEP and Department of Community Affairs. The DEP Commissioner and other affected agency heads would not have, as they currently do, authority to modify the ALJ’s final decision or reject it outright. The bill advances goals of the Christie Administration’s Red Tape Review Commission to promote common sense principles in the administrative and regulatory process. An identical Senate bill has not yet been acted upon and is still in Committee. However, the Assembly’s passage of the bill is a positive step toward restoring faith in the legitimacy of the administrative process.

Category: Legislation, NJDEP

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