The DEP has now adopted a rule that offers applicants the opportunity to avoid absurd results due to conflicting rules and overly restrictive requirements. Sound projects that are have stymied by current rules now have a path that can lead to approvals. The long-awaited waiver rule can be accessed by clicking here.

The rule allows for DEP to waive its own rules under the following circumstances:

  • Formally declared Public Emergencies.
  • Conflicting Rules.
  • A Net Environmental Benefit would be achieved.
  • An Undue Hardship is created by the rule(s).

Review under the waiver rule will be on a case by case basis. The application process is being developed and will be in place in the upcoming months. No applications under the waiver rule can be submitted until August 1, 2012. Applications will not be considered on a first-come, first-served basis and DEP has not established any timeframes for review of waiver requests. The rule adoption document can be viewed by clicking here.

The formal rule adoption document will be published in the April 2, 2012 New Jersey Register.

Waivers cannot be used to alter or waive:

  • Specific statutory state mandates.
  • Specific federal mandates.
  • Numeric or narrative standards protective of human health (such as cleanup standards).
  • Threatened and Endangered Species designations.
  • Certain licensing requirements.
  • Fees and costs charged by DEP.
  • Provisions of the waiver rule itself.

The rule includes provisions that create many steps designed to insure that the waiver review process is transparent. Our attorneys have been actively in the development of the rule. Please contact us with any questions.