Waiver Rule: One Rule to Rule Them All!

Written by PisauroLawAdmin on April 30th, 2012 in Courts, legislation, Regulation | No Comments »

With the adoption of the “Waiver Rule” on March 6, 2012 the Department of Environmental Protection (DEP) attempted to give itself the authority to waive the requirement of any environmental regulations. In order to qualify for a waiver one of the following four categories must be met:

Conflicting rules
Strict compliance with the rule would be unduly burdensome
net environmental benefit; or
A public emergency

28 environmentalist and labor organizations immediately filed a lawsuit against the DEP asserting that the administration did not have the “authority to adopt a blanket waiver rule without specific legislative authorization. The promulgation violates separation of powers provisions of the New Jersey Constitution. The waiver rule also fails to meet required standards for specificity. The waiver rule fails to set up necessary process for the issuance of waivers. The promulgation of a single waiver rule for all environmental statutes is overly broad.”

What does this all mean? Let us take a closer look at each of these points.

First, the administration did not have the “authority to adopt a blanket waiver rule without specific legislative authorization” and ‘the promulgation violates separation of powers provisions of the New Jersey Constitution.” Put plainly, does DEP have the authority to issue one rule that can affect the implementation of hundreds of other rules? Did the Legislature grant DEP the authority to waive statutory or regulatory requirements? “An administrative agency only has the powers that have been ‘expressly granted’ by the Legislature and such ‘incidental powers [as] are reasonably necessary or appropriate to effectuate’ those expressly granted powers.” Borough of Avalon v. New Jersey Dept. of Environmental Protection, 403 N.J. Super 590, 607 (App. Div. 2008).

That delegation of authority can be expressed or implied. I do not believe that even DEP believes it has the express authority to issue this waiver rule. DEP asserts that this power arises out of the implied powers in its authorizing statute as well as various other statutes. There is a problem with this argument.

If the power is derived from its implicit powers, those powers must be fairly necessary to the implementation of the statutory authority. In looking at the exercise of implicit authority, the Courts have stated that where there is “reasonable doubt as to whether such power is vested in the administrative body, the power is denied.” This is because an agency only has the power that has been granted or delegated to it. There is no statute which provides the Department with the authority, independent of its various individual statutes, to issue a blanket waiver. Just as important, when the exercise of an implicit power concerns a policy question of significance, that power has not been delegated by the Legislature to an agency. The Legislature has reserved policy questions of significance to itself.. What “greater policy question” can there be than which environmental protection is inferior to other protections?

Second, “the waiver rule also fails to meet required standards for specificity.” This is evidenced by the fatal deficiencies in qualifying 3 out of the 4 categories under which an applicant is eligible to apply for a waiver. Under the “conflicting rules” category are situations where compliance with one rule is prohibited by compliance with another rule – resulting in a conflict. Further, this conflict is not limited to environmental regulations – it extends to other agency rules as well. The Waiver Rule, however, does not provide any guidance as to how a conflict is to be resolved. For example, if a DOT rule requires 30 foot wide roads but constructing a 30 foot road on a parcel of property would put a portion of that road into the wetlands, under the Waiver Rule the wetland might be sacrificed for the road. Another conflict might arise when a project is required to have zero net fill in a wetland but, in order to comply with that requirement, the road would be subject to flooding. Which requirement takes precedence?

Under the second category, a waiver could be issued in situations where strict compliance with the rule would be unduly burdensome. The rule ‘defines’ unduly burdensome as either:

Actual, exceptional hardship for a particular project or activity, or property; or
Excessive cost in relation to an alternative measure of compliance that achieves comparable or greater benefits to public health and safety or the environment.

However, the rule does not define an “actual, exceptional hardship.” Rather, the rule continues to state that one of factors to be considered is whether “the person seeking the waiver may have directly caused or contributed to the circumstances that resulted in the rule being unduly burdensome.” This means that even if the applicant caused the hardship they will not be prohibited from getting a waiver. For example if an applicant subdivided its property so that one or more lots are impacted by wetlands that applicant can seek a waiver from strict compliance with the wetlands rules, because it would be an exceptional hardship to comply with those rules. DEP may still grant that waiver even though the applicant has created its own need for a waiver. This creates an incentive for applicants to create hardships so as to maximize their economic profits while maximizing environmental damage.

The second part of the definition of “unduly burdensome” is also a bit vague on the details. The Waiver Rule does not require that the “alternative measure of compliance” provide protection for the resource that was originally protected by the rule for which the waiver is being sought.. How then does one judge the importance of protecting one resource over another? Is clean water more important than a nesting site for an endangered species? Is clean air more important than protecting the water quality of a category one river? One can certainly envision the arguments of a developer that they want to remediate and develop a contaminated site but to do so they need to impact a river.

The third criteria requires a net environmental benefit. This provision is not limited to a situation where an applicant thinks that it may have a better way to meet the standards than what is required by the rule. It could also apply to situations where an applicant is proposing exceeding one standard but may subject another media to less protection. As noted above, regarding unduly burdensome, how does DEP make the determination that one statutory scheme deserves more protection than another.

The third issue raised by the waiver rule is that “the waiver rule fails to set up necessary process for the issuance of waivers.” The Courts have required agencies to “to structure and confine their discretionary powers through safeguards, standards, principles and rules” in order to satisfy due process and produce reasoned and principled decisions” (Crema v. N.J. Dep’t of Envtl. Prot., 94 N.J. 286, 301, 463 A.2d 910 (1983)). There are no safeguards, and no standards or principles by which to judge or evaluate a request for a waiver. In fact, DEP is delaying implementation of the waiver rule until August 1^st in order to devise these guidelines. There is no way that anyone could look at a particular project and apply the Waiver rule to it and know before applying whether that project would get the requested waiver or not.

As pointed out above 3 of the 4 categories for a waiver are so broad and undefined as to be meaningless.

The issue raised by the rule is that “the promulgation of a single waiver rule for all environmental statutes is overly broad.” given that many of the statutes and their implementing regulations already provide for a relaxation of the rules under certain expressed circumstances, why does the department really needs one rule to rule them all. They do not need the rule and more importantly they do not have the authority to issue the rule.

This blog post is my own opinion and is not intended to reflect the opinion of any client or organization.

2010 Report shows NJ Water Quality Not Improving

Written by PisauroLawAdmin on February 29th, 2012 in Clean Water | No Comments »

Yesterday, the Environmental Protection Agency approved New Jersey’s 303(d) list. (link) The 303(d) list is required under the Federal Clean Water Act. Every two years the DEP is required to submit to EPA a list of all the waters in the state that do not meet designated standards: drinking water supply, recreational use; aquatic life, fish and shellfish harvest and consumption; etc. Every water body in the state should be designated for particular uses: recreational, water supply, aquatic life, etc. All waters should be meeting general aquatic life standards. NJ is then supposed to use this list and prioritize the development of Total Maximum Daily Loads for affected waters. In essence the maximum amount of a particular pollutant that a water can accommodate and still met water quality standards.

According to NJ’s 2010 Integrated Water Quality Monitoring and Assessment Report, prepared in part to comply with 303(d), NJ has 18,000 miles of rivers and streams; more than 50,000 acres of lakes, ponds and reservoirs; 950,000 acres of wetlands; 260 miles of estuaries; 127 miles of coastline; and 450 square miles of ocean within its jurisdiction. In order to comply with the requirements of the clean water act, NJ monitors its waters, except it does not monitor all of the waterways.

NJ’s list is very interesting and very disturbing. Of the waters it does monitor the results are very telling. Only 3% of NJ’s waters support all designated uses if you do not count fish consumption. 60% of our monitored waters are not clean enough to support aquatic life. All waters in NJ are supposed to meet aquatic life designation but only 40% of the monitored waters do. Shockingly only .only 48% of NJ’s waters are clean enough to meet the drinking water designation. All of NJ’s waters are supposed to meet the recreational designation, but only 16% of the water does. That means only 16% of waters in NJ are clean enough to swim in or boat in.

In an attempt to put a positive spin, the report says, “long-term trends in chemical water quality data show generally stable water quality conditions statewide, with improving conditions for some parameters and declining conditions for others.” While I have not done a detailed comparison between the 2008 and 2010 report it would appear at first blush that there is a decline in water quality in NJ.

In short, NJ’s water quality is not good and it has not been getting better. This stagnation or decline is despite NJ’s strong environmental laws and regulations. While NJ’s water is not getting better the current administration is dismantling environmental protection. There are two glaring examples, the recently enacted law delaying implementation of NJ’s Water Quality Management Plans and the pending extension of the Permit Extension of Act of 2008. In its support of delaying the WQMP rules, DEP testified that they do not intend to enforce the regulations and will be seeking to amend the law. In the meantime because of the delay, applications can come in based upon plans that may be decades old and the applicant is not required to prove that there is available water supply. Also, these plans are not required to deal with septic systems. These delays are despite the Reports acknowledgement that land use has one of the biggest impacts on water quality.

The State Legislature is in the process of passing another Permit Extension Act. If this bill is passed permits and other approvals that would have expired on or after January 1, 2007 would be extended. That extension could be as long as June 30, 2014.This would be third extension of permits since 2008. The integrated report inadvertently spells out one of the issues with the Permit Extension Act. According to the 2010 Integrated report, “if a TMDL is adopted in 2010 and permits are issued in 2011 with a three year compliance schedule, improvements might not be observed until 2014.” Permits for discharges into our waterways are valid for up to 5 years. This would mean that a permit issued in 2002 would be valid until June 30, 2015. The discharger would not have to comply with any TMDL prepared after the issuance of the permit until the permit expires. It could be up to 13 years before a discharger would be required to comply with a standard developed in 2003. In short, TMDLs developed between 2002 and June 30, 2015 may have no effect in cleaning our water because of the Permit Extension Act.

As the Integrated Report makes clear, NJ’s environment needs serious attention. We should be using this current economic situation to revise our regulations to ensure water quality in NJ will improve. We should not be using it as an excuse to continue to degrade NJ’s water quality. How much does dirty water cost our economy? I suggest dirty water costs us more than we realize.

LICENSED SITE REMEDIATION PROFESSIONAL BOARD

Written by PisauroLawAdmin on August 9th, 2011 in Clean Up, Site Remediation | No Comments »

After several rounds of negotiations the Site Remediation Reform Act (SRRA) was signed into law on May 7, 2009. I wrote about those negotiations in my blog: GreenPages-NJ. The Department of Environmental Protection (DEP) proposed creation of the SRRA because of their concern that they did not have the resources to oversee and manage approximately 20,000 contaminated sites throughout New Jersey. The law creates “Licensed site remediation professionals (LSRPs)” who are charged with investigating whether a site is contaminated, preparing a remediation plan, executing that plan and then determining whether the site has been remediated in accordance with the plan. Lastly, these professionals are responsible for issuing a Result Action Outcome (RAO) letter which is the equivalent of the No Further Action letter we are used to seeing from DEP. Beginning on May 12, 2012 all “responsible parties “(such as a property owner, tenant or person who caused the contamination) are required to hire an LSRP to deal with their contaminated properties, however, DEP is encouraging this process to begin now rather than to wait until it is required.

Along with the creation of site remediation professionals came the need to license the LSRPs and to establish a professional board that would be responsible for overseeing the licensing of professionals, and their continuing education, conducting audits and investigating complaints. Under the appropriate circumstances, the board would also be responsible for disciplining the LSRPs.

That board is comprised of 13 members and its chairman is the Commissioner of DEP or his designee. Currently, this position is held by the assistant commissioner for site remediation, David Sweeney. In addition to the chairman, the board includes the state geologist, three members from the environmental community – including an LSRP working for environmentalists - and a representative of the responsible parties as well as an academic member. The remaining 6 positions are held by licensed site mediation professionals. Currently 11 of the 13 members have been nominated by the governor and confirmed by the Senate. The third environmentalist has been nominated by the governor and is awaiting confirmation by the Senate. The academic member of the board has yet to be nominated.

I was appointed by Governor Christie to serve as a representative of the environmental community and have participated since the board’s first meeting. We’ve met every 2 weeks from November 2010 to the end of May 2011 but have moved to a once a month schedule for the summer. Since November we have set up several committees to review and prepare recommendations on the various issues, including licensing, continuing education, audits, professional conduct review committee, and rules committee. There’s also a financing and bylaws and outreach committee.

Two major issues confronting the board and its committees are how to perform the audits and discipline. SRRA requires that the Board audit at least 10% of the LSRPs each year. The audit committee has prepared a proposed questionnaire to send to the LSRPs. That questionnaire was presented to the public and the committee has received comments which they are now reviewing.

The Professional Conduct Committee, on which I sit, is currently developing the discipline process. The committee has published to the public a flow chart of the process and is writing the proposed rules to expand on the flow chart. An open forum on that process will be held in July.

The rules being developed by the board will, in large part, determine whether the program is successful and whether the public can be assured that the remediations that are occurring are protective of human health and the environment.

For more information on the board you can go to the Board’s website at http://www.NJ.gov/SLRPB.

NJ is rapidly becoming the City State not the Garden State

Written by Mike Pisauro on August 5th, 2010 in land use, Wetlands | No Comments »

Researchers from Rowan and Rutgers University have recently released a new report looking at the changes in NJ’s land use from 1986 to 2007. A prior report looked at the changes from 1995 to 2002. This report adds the period between 2002 to 2007. This report shows some very amazing facts.

The rate of development in NJ increased by 7% from 2002 to 2007. From 1995 to 2002 NJ lost an average of 15,123 acres per year to urbanization, but that increased to 16,061 acres per year from 2002 to 2007. As we continued to increase urbanization in the State of New Jersey we lost forests, wetlands, open space, and forestlands. These land use changes have ramifications. For example we lost 66.3 square miles of forest over 21 years. This loss of land to urbanization has many negative environmental impacts. The loss of forests has increased the fragmentation of habitat and has created more fringe areas. Species that rely on large areas of habitat will have less large areas to hunt, bred and to live. Fringe habitat encourages invasive species to take over.

We continue to lose wetlands to urbanization. From 2002 to 2007 we lost 8,652 acres of wetlands or the slightly more than the total area of the Hackensack Meadowlands. It is somewhat surprising at the level of wetlands loss since 1995 as overall federal policy is for zero wetlands loss. Another issue with NJ’s wetlands loss is NJ’s water quality. It is well accepted that when a watershed has 10% or more of its land covered by impervious surface that watershed is impacted to various degrees. Increasing impervious cover will have an impact on water quality as well as flooding. NJ’s 2008 Integrated Water Quality Report shows that NJ’s waters are not fairing well. 63% of the streams that could be assessed did not meet the standards for aquatic life. 41% of our waters do not meet the designation for recreational use and we do not know enough to determine the status of another 40%. Interesting, the report reveals that fish and invertebrate communities were commonly impacted in urban areas and that “increase in impervious surfaces was related to a negative response in the aquatic invertebrate community.” As we continue to pave over NJ our water quality will decrease. This will also cause continued efforts to clean up our streams, rivers and lakes to be a more expensive proposition.

Another interesting fact the report reveals is that almost 50% of the development has taken place outside of the areas designated for growth within our state plan. This is contrary to NJ’s State Plan, but a look at this issue will have to wait for another post.

Offshore Wind Projects to get a boost with ORECs

Written by PisauroLawAdmin on July 22nd, 2010 in Ocean, Renewable Energy, Wind | No Comments »

On June 28^th both houses of the legislature passed S2036. It now waits for the Governor to sign it into law, which he is expected to do. S2036 does two things for offshore wind. First it creates an offshore wind renewable energy credit or OREC. Second the bill provides additional financial incentives for building offshore wind farms and encourages manufacturers of wind turbines and related equipment to locate their facilities in NJ.

S2036 encourages the offshore wind industry by creating ORECs. An OREC is equal to one megawatt hour of electricity from an offshore wind project. The bill also requires the Board of Public Utilities to set up a schedule of electricity that must be supplied from offshore wind power similar to the carve out for solar.

S2036 amends NJ’s 1999 deregulation of electrical generation to create the ORECs. As part of the 1999 deregulation the State set in place a renewable energy portfolio requirement. The law and its regulations required electricity utilities to supply a certain percentage of its electricity from renewable sources. These utilities could generate their own renewable energy or they could purchase renewable energy credits from those people and business that have installed renewable energy systems. These RECs would then count towards the utilities’ RPS requirements. The RPS increases overtime. Currently the State plans to obtain the equivalent of 30% of its electricity from renewable sources by 2022. The State also really wanted to encourage solar systems so it broke out from the RECs the SREC (solar renewable energy credit) and a corresponding solar RPS. These SRECs are partially responsible for NJ being #2 in the nation for renewable energy. The SRECs are also one of the reasons that NJ has the shortest return on investment periods for solar anywhere in the country. It is the legislature’s hope that ORECs have a similar impact that SRECs did for solar installations.

The second part of the bill provides incentives for manufactures to locate their facilities in NJ. The bill amends NJ’s Global Warming Solutions Fund law to reallocate some of the money that NJ gets from the RGGI auctions. These monies are available as grants or “other forms of financial assistance” to manufacturers of wind turbines and associated equipment who locate their plants in NJ. Offshore wind projects can also receive these monies to help finance the project.

There are four wind farm projects proposed for the waters of New Jersey. Hopefully this bill helps create the financial incentives needed to keep these projects moving forward as well as enticing new projects.

EPA has enforcement action online, DEP has some info but not as much

Written by Mike Pisauro on May 25th, 2010 in Federal | No Comments »

I came across a very interesting tool yesterday for about the tenth time. I learned about this tool several years ago and then forgot about it. Every now and then I am reminded about it. The tool is a map from EPA that shows many of its enforcement actions in a given area. These are actions brought against a facility that has violated a permit. You can zoom in to a specific area and select whether you would like to see enforcement actions for air, water, land, criminal, cross media or federal facilities. A screenshot of all the enforcement actions in the NJ area is below.

EPA Enforcement Actions in NJ

Once you have isolated an area you can click on one of the flags to learn move about the facility.

Site specifics of enforcement action

While NJ does not have a similar system to locate enforcement actions, you can located licensed facilities. DEP has the i-MAPNJ web program.

DEP's licensed sites list

Sometimes information is very useful. Hopefully DEP will update the information available to the public.

Take a few moments to celebrate Earth Day!

Written by Mike Pisauro on April 22nd, 2010 in Uncategorized | No Comments »

Today is Earth Day. In fact it is the 40^th Anniversary of Earth Day. I have given a lot of thought what my post will be on Earth Day. There is a lot going on in NJ that I could be writing about and need to write about. There is the recently released Red Tape Review. There is DEP’s Administrative Order that did what the legislature could not do last year. The A.O. continues to allow local government not to update decades old wastewater management rules. I could have written about the assault on NJ’s endangered species. In short there is a lot I could have written about and will write about soon.

Instead of writing of the many negative things going on in NJ, I wanted to write about something positive. My inspiration for this post literally flew into mind. For Earth Day, I want to write about two things. First, below is a picture of a raptor that was eating its dinner on my kid’s swing set last night. It was amazing. It was the first time I had seen something like that so up close and so close to home. It fascinated my kids. I want my children to have many experiences like this. I want my children to be able to have free access to a healthy environment. It is moments like this that drive me to continue to lobby for the environment and to be part of the solution.

Bird eating its dinner

The second thing I wanted to write about was more of a challenge. What is one thing that you can do today that will make the environment better? It does not have to be a major item. It could be something little. It could be picking up a piece of litter you see on the ground. It could be taking a short shower instead of a long one. You could choose to drink tap water instead of bottled water. What will you do to do today?

Obama Administration channels Bush and opens up the seas to oil

Written by Mike Pisauro on April 5th, 2010 in Federal, Global Warming, Ocean, Politics | No Comments »

Last week the Obama Administration announced that it would open up the outer continental shelf or oil and gas production. It was a proposal that is very reminiscent of the Bush Administrations removal of the decades old ban on offshore drilling which I wrote about in “Another short sighted solution that solves nothing.” While this proposal sounds like a Bush administration plan, it is supposed to be part of a broader energy strategy. President Obama in is announcement of the plan said:

I want to emphasize that this announcement is part of a broader strategy that will move us from an economy that runs on fossil fuels and foreign oil to one that relies on homegrown fuels and clean energy. And the only way this transition will succeed is if it strengthens our economy in the short term and the long term. To fail to recognize this reality would be a mistake.

The problem with the plan is that I do not thin it will do what it is supposed to do. The Obama Administration’s plan to open up the OCS will do little to reduce fuel prices or availability of fossil fuels. It is also naïve to think that the oil and gas developed off our coasts will remain in the country. That oil and gas will go to the highest bidder no matter where they are located. It will also subject to the OCS from additional pollution. Pollution that is caused by the drilling process. Pollution that is caused by leaks in the systems of offshore drilling platforms, vessels and from the pipelines. Pollution that may arise from spills and other accidents.

Our oceans are already severely impacted by our pollution. To increase the amount of chemicals that are leaked into the oceans through the drilling process is not going to help our oceans. Also, is there were to be a major spill, that would devastate NJ’s economy. In 200?, NJ tourism was the second or third biggest industry in the State. If an oil spill was to occur off our coast, it could foul our beaches. And oil spills do occur. In January of this oil an oil tanker spilt 450,000 gallons in Port Arthur, Texas. In 2007 a tanker spilled 57,000 gallons of fuel into the San Francisco Bay causing $70 million of damage to the fisheries and beaches. I am not even mentioning The Valdez. By some estimates Hurricane Katrina caused 6.5 millions gallons of oil to be spilled into the environment.

There is another problem with opening up the OCS for oil and gas exploration. Even though the President suggests this is a short term plan. The short term plan seems to be counter to the Administrations clean energy platform and to combating global energy. As President Obama said last years United Nations Conference on Climate Change:

Now, as the world’s largest economy and as the world’s second largest emitter, America bears our responsibility to address climate change, and we intend to meet that responsibility. That’s why we’ve renewed our leadership within international climate change negotiations. That’s why we’ve worked with other nations to phase out fossil fuel subsidies. That’s why we’ve taken bold action at home — by making historic investments in renewable energy; by putting our people to work increasing efficiency in our homes and buildings; and by pursuing comprehensive legislation to transform to a clean energy economy.

I am also very concern that this new push for more oil and gas signals a retreat from or at least will impact our Country’s move toward renewable energy and to away from a commitment to combat climate change. How are we going to stop incentivizing oil and gas when we open up more areas for drilling? Are we going to lease them out for their full value? How are we going to grow the green energy while telling the world that oil and gas is here to stay? How do we credibly tell the world that we will lead it in solving climate change, when we cannot let go of the past.

Opening up the OCS for more oil and gas exploration is the wrong policy for many reasons.

NJ needs a saltwater angler license, but should it be free or paid?

Written by PisauroLawAdmin on March 31st, 2010 in Fisheries, legislation | No Comments »

On March 22, 2010 the Assembly voted in favor of A832. This bill would create a saltwater fishing license. That license will require DEP to create and implement a free license for saltwater anglers. NJ needs a saltwater license but it cannot be free.

A license is necessary because of the requirement of the Federal Magnuson-Stevens Fishery Conservation and Management Reauthorization Act passed in 2007. The act created a federal salt water fishery registry. All saltwater anglers would have to register with the Federal government or with their State, if the State had a registry.

The purpose behind the registry is to help provide more accurate data to the Marine Fisheries Council. More accurate data can then be used to determine whether a species is overfished, experiencing overfishing or is being fished in a sustainable manner. This data can then be used to the councils make better decisions on how to manage the fishing stock. We need better information on our fishing stock and we need to manage them better.

Currently, we know of 93 U.S. fish populations that are already overfished or that are currently being fished at unsustainable rates—nearly a third of the 304 fish populations that scientists have assessed (NMFS,2002b). The majority of the already overfished populations are still being fished unsustainably, frustrating rebuilding efforts. The status of another 655 populations, including 120 major stocks (those with landings of at least 200,000 pounds of fish a year) is unknown Pews Ocean Commission, America’s Living Oceans: Charting A Course for Sea Change.

In the last several years NJ has done little to address the findings of the two ocean commissions. Little has been done to learn more about the health or our fisheries. Also, we have done little to overcome the reasons for overfishing. While NJ has the third largest commercial fishery port and has somewhere between 500,000 to 1 million recreational anglers, NJ is not dedicating meaningful resources to managing this vital resource.

One of the problems is that while environmentalist and even Mid-Atlantic Fisheries council believe many fishing stocks are overfished, the fishing industry disputes this claim. They allege that the science relied on by the council and environmentalists are flawed and incomplete. One thing I think that both sides would agree on is that we do not know enough to have a 100% complete picture on the health of our fisheries. We know a lot but we could learn more.

In order to obtain better data, the reauthorized Magnuson-Stevens Fishery Conservation and Management Reauthorization Act created a national fishery registry. All recreational anglers are required to register. 2010 is the first year the national registry has been in place and it is free. Next year the cost of the registry will be $15 to $25. That money will go to the general fund in D.C. and will not necessarily be distributed to help the Fish and Wildlife. It also will not go to the states. One can opt out of the federal system if the State enacts its own registry. Most of the Atlantic coast has enacted a registry. NJ is considering one or more bills. One of the bills passed out of the Assembly Agriculture and Natural Resources Committee last week. That bill would create a free registry. A free registry that would have to be created and administer by DEP. This free registry comes at a time when DEP’s resources are windingly. The current budget proposal would decrease DEP’s budget another 2% one of many cuts it has suffered over the last several years. Those cuts show. For example compare the amount of resources dedicated by North Carolina to marine fisheries with NJ:

New Jersey is dead last of the Atlantic coast states in dollars spent by Government in support of marine fisheries:

This lack of resources has cost NJ and will continue to cost NJ. You cannot have good science without paying for it. You cannot make good management decisions without good information. A paid registry system will fund NJ DEP’s Fish and Wildlife’s marine programs. This funding will allow FWS to do the science that is necessary to insure that our fisheries are healthy and being managed sustainable. A free system will not do that. A free system will actually pull resources away from managing the resource. Both the marine ecosystem and those who use the resource will benefit.

Was 2009 the year for renewables in NJ?

Written by Mike Pisauro on February 10th, 2010 in Green Building, land use, legislation, Renewable Energy, Solar, Uncategorized, Wind | No Comments »

A lot has happen since I wrote Renewables and Land Use Law in 2008. 2009 may be one of the best years for renewable energy in New Jersey. Several laws were passed 2009-2010 in NJ that help move the acceptance and adoption of renewable energy in NJ.

There were two very significant bills. The first modifies NJ land use laws. P.L. 2009 C. 146 adds the definition of inherently beneficial to the land use statutes. Up to now what was inherently beneficial was determined on a case by case basis and only after litigation. The recently enacted law defines inherently beneficial (for the first time) to include “wind, solar or photovoltaic energy facility or structure.” Being inherently beneficial is very useful for land use applicants who are seeking a D variance from their local land use board. D variances are the toughest to get and require the applicant to show that the positive aspects of the project outweigh the negatives. If your proposed project is inherently beneficial you automatically meet the positive requirements of a D variance. What is left is showing that the proposal does not create a substantial detriment to the public good and will not substantially impact the zone plan and township ordinances.

Another law that will have far ranging implications is P.L. 2009 c. 244. This law goes even farther than P.L. 2009 c. 146. In essence this bill requires municipalities to allow small wind turbines within their borders. The bill provides that municipalities “shall not unreasonably limit such limitations or unreasonably hinder the performance of such installations.” Under the bill municipalities cannot enact ordinances that unduly restrict the installation of renewable energy. A small wind energy system or turbine is one which is primarily for onsite consumption of electricity. It is considered an unreasonable for a municipality to:

Prohibit small energy systems in all districts within the municipality
Restricting tower height by applying generic height ordinances that does not make allowance for tower heights.
Requiring setbacks more than 150 percent of the system height.
Setting noise level lower than 55 decibels.
Setting electrical or structural criteria that exceed the applicable UCC standards

This is a very important step forward for wind turbines in NJ. It will not remove all barriers to the installation of wind turbines as a town could require a setback of 150% which many property owners may not meet. Given that the towers for small wind energy systems are rated for hurricane winds, the setbacks really are overly restrictive.

P.L. 2009 c. 35 provides that on industrial property of 20 or more acres solar and wind systems are permitted uses. This would prevent municipalities from requiring variances for the installation of these systems. An applicant would only need a construction permit to install these kinds of systems.

P.L. 2009 c. 33 requires developers of new residential housing to offer as an option to their purchaser’s solar energy systems. This requirement applies developments of 25 units or more. The systems also must be covered under the New Home Warranty and Builder’s Registration Act. Interesting the Legislature set out a section of findings prefacing this law. The State has declared that, “[t]hat the installation of even small scale solar energy systems will combat global warming and reduce the nation’s dependence on foreign energy sources, resulting in a significant environment benefit.” I would suggest a similar finding can be found for wind in the State of NJ.

P.L. 2009 c. 289 revises our electricity generation laws. In particular it increases the amount of electricity that utilities selling power in NJ have to get from solar sources. The law also changes the requirement from a percentage of total electricity generation to absolute numbers. Under this law the State of NJ is requiring that utilities supply either directly or purchase from other generators the following gigawatt hours of electricity generated from solar systems:

2011	306 Gwhrs	2019	1,858 Gwhrs
2012	442 Gwhrs	2020	2,164 Gwhrs
2013	596 Gwhrs	2021	2,518 Gwhrs
2014	772 Gwhrs	2022	2,928 Gwhrs
2015	965 Gwhrs	2023	3,433 Gwhrs
2016	1,150 Gwhrs	2024	3,989 Gwhrs
2017	1,357 Gwhrs	2025	4,160 Gwhrs
2018	1,591 Gwhrs	2026	5,316 Gwhrs

After 2026 the State will still require at least 5,316 Gwhrs of electricity from solar sources. The law allows for the number of Gwhrs to be increased.

The law also permits that the above schedule can be increased by 20% if in the three preceding years there were enough or excess SRECs to meet the requirements and the average price of SRECs in the same three years decreased.

The State changed the system from requiring a percentage of energy to absolute numbers because of the intent in the Energy Master Plan to reduce overall all energy demand. If the RPS requirements remained as a percentage the State would start generating less electricity from renewable energy sources the more successful the EMP was.

The next two are not renewable energy bills but also fairly significant for the energy usage of NJ.

P.L. 2009 c. 106 requires the Department of Community Affairs to develop new enhanced energy codes. These codes are based upon the projected energy costs for the next tens years. The enhanced energy codes shall be designed to increase energy conservation for buildings. In 2006 buildings accounted for 39% of the energy use in the United States. So by enhancing the energy efficiency of new or renovated buildings will go a long way to reducing greenhouse gas emissions and overall energy usage. The new codes are to be set so any increased in cost to meet the new codes will be paid back within seven years from the reduced energy usage.

Lastly, P.L. 2009 c. 33 allows BPU to give grant money to install energy efficiency, renewable energy, reduction in peak demand, and reduction in energy usage for commercial and industrial business with high peak demand. As industry is one of the largest users of energy in NJ some have argued that more money should be spent to help them reduce their energy demands and thus help NJ reduce its consumption of fossil fuels. I am frankly not that convinced that industry should be given this kind of hand out given that many of these energy efficiency, renewable energy systems will pay the company back in a relatively short time frame.

All of these new laws move renewable energy in NJ forward. They make it less expensive to buy, obtain permits and install. The laws improve the market for renewable energy by creating a greater demand. While NJ has moved forward we still have some road to travel. There are several bills being considered for the 2010-2011 legislative session that will again impact NJ’s energy and environmental future. I will look at these bills in a future post.

Green Pages NJ

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