Posts Tagged ‘legislation’

Senate To Vote on Permit Extension Act and Waiver Rule: One Bad and One Good.

Written by Mike Pisauro on May 31st, 2012 in land use, legislation, Regulation | 1 Comment »

This afternoon the New Jersey Senate is voting on two very important bills:  SCR59, The Waiver Rule and S703, Permit Extension Act of 2008. These two bills are very important as SCR59 will be an important step in stopping the DEP from undermining environmental protection and S743 will help undermine environmental protections including the Highland Planning Area and the Pinelands Preservation Area.  That both bills are up at the same time is somewhat troubling.  Is the senate looking to do one good thing so that they can vote in favor of a bad thing?  While the legislative process is always one of compromise, there should not be any compromise of basic environmental protection.

I have written about the DEP’s Waiver Rule and why it is bad.  Take a look at Assembly Tells DEP to Waive Goodbye to Waiver Rule, Waiver Rule: One Rule to Rule Them All! for more information on that topic.

Why is Permit Extension Act so bad?    Hasn’t there already been several Permit Extension Acts?  Yes, and I have written about the Permit Extension of 2008 when it was originally introduced.  If we already have it, then why is S743 bad?  It is bad because it is more expansive than the original act.  The original Permit Extension Act was strongly opposed by environmentalist and the final product was the result of strong negotiations between all parties.  The final bill removed from the Act environmentally sensitive areas.    Under NJSA 40:55D-136.3(a), environmentally sensitive areas was defined to include: Planning Areas 4B (Rural Environmentally Sensitive), Planning Area 5 (Environmentally Sensitive) or a critical environmental site, the Highland Regions except for areas designated for growth and the pinelands area except for areas designated for growth.  In these areas the Permit Extension Act of 2008 did not extend permits.

S743 redefines environmentally sensitive areas.  Under the pending bill the definition of Environmentally Sensitive Area does not include either the Highlands Planning Areas or the Pinelands Planning Area.   The bill goes further by adding a definition of “smart growth area” by including all of the Highlands Planning Area as a growth area.  The Highlands Planning Area covers about 450,000 acres of New jersey of which about two-thirds of it is considered environmentally sensitive.  The Planning Area includes Under the Highlands Water Protection and Planning Act, the purpose of the planning area is to:

  1. Protect, restore, and enhance the quality and quantity of surface and ground waters therein;
  2. Preserve to the maximum extent possible any environmentally sensitive lands and other lands needed for recreation and conservation purposes.
  3. Protection and maintain the essential character of the Highlands environment;
  4. Preserve farmland and historic sites and other historic resources
  5. Promote the continuation and expansion of agricultural, horticultural, recreational and cultural uses and opportunities;
  6. Preserve outdoor recreation opportunities, including hunting and fishing, on publicly owned land.
  7. Promote conservation of water resources
  8. Promote brownfield remediation and redevelopment
  9. Encourage, consistent with the State Development and Redevelopment Plan and smart growth strategies and principles appropriate patters of compatible residential, commercial and industrial development, redevelopment , and economic growth, in or adjacent to areas already utilized for such purposes, and discourage piecemeal, scattered, and inappropriate development, in order to accommodate local and regional growth and economic development in an orderly way while protecting the Highland environment from individual and cumulative adverse impacts.

As can be seen from the above list, the main purpose of the planning area was to preserve the area while allowing limited and controlled development. This goal was reinforced by Section 12 of the Statute that provided the regional and local master plan for the preservation area shall include:

 A preservation zone element that identifies zones within the preservation area where development shall not occur in order to protect water resources and environmentally sensitive lands . . .

S743 completely ignores this requirement of the law as it restores and extends permits that may predate the Highlands Act.  The Highlands act specifically provided at all permits would expire within three years of the enactment of the Highlands if construction, beyond site preparation, had not begun.   That means if you had a permit and did not begin meaningful construction prior to August 10, 2007 your permit expired.  Under S743 permits that expired between January 1, 2007 up to the present will be revived.  Permits that have been gone for up to 5 years will now be valid.  Many of these permits would pre-date the Highlands Act and would pre-date any regional master plan and local plan that protects the sensitive areas within the planning area.

It is difficult to rectify the strong intent to protect the Highlands Planning Area with the expanded language in S743.  If this bill passes out of the Senate it will be hard to justify that vote against the 34 Senators that voted in favor of the Highlands Act in 2004.  Hopefully S743 is not passed to in its current form and the Senate stands up for the environment and all of us today.

 

Please read these related posts:

Waiver Rule:

Assembly Tells DEP to Waive Goodbye to Waiver Rule

Waiver Rule: One Rule to Rule Them All!

 

Permit Extension Act:

Governor does not veto Permit Extension Act

Enviros seek Governor’s veto of Permit Extension Act

0 to 60- Permit Extension Act passes both houses.

A bullet train that will not stop

Permit Extension Act may not be so extended

New Jersey wants to stop time

Assembly Tells DEP to Waive Goodbye to Waiver Rule

Written by Mike Pisauro on May 26th, 2012 in legislation | 2 Comments »

On May 24th, the New Jersey Assembly passed ACR37. The resolution passed without discussion and the vote was along party lines. This resolution declares that the DEP’s Waiver rule is against legislative intent. ACR37 also notes that many of the 100 plus statutes cited by the DEP as authority for the rule are either incorrect or do not provide the authority the DEP alleges. I also note with interest, that the Legislature thought about granting the power to DEP waive strict compliance with standards but decided to remove this provision from the bill before it was enacted. This section gives some weight to the argument that I have made that the Waiver Rule was not enacted under an express grant of power. (See my post: Waiver Rule: One Rule to Rule Them All!)

The next step will occur on Thursday May 31st when the New Jersey Senate will consider and vote on SCR59, the senate version of the resolution. I expect that it will again pass along party lines.

Once the resolution passes both houses, the legislature will transmit the concurrent resolutions to the Governor and the DEP. The transmittal is only a notice mechanism and the concurrent resolutions do not require the Governor’s signature to become effective. Once transmitted, the DEP will have 30 days to amend the rule or to withdraw the rue. The legislature has this power because the New Jersey Constitution allows the legislature to review any rule or regulation adopted or proposed by an administrative agency. This makes sense because while administrative agencies are part of the executive branch they are exercising power delegated to it by the legislative branch. If the DEP does not amend the rule or withdraw it within the 30 days, then the Legislature can again pass the concurrent resolutions again and upon the second passage, the Legislature will invalidate the rule.

I expect the Senate to pass the SCR, but I do not expect that the DEP will amend or withdraw the rule. That would mean that both houses will have to vote on a concurrent resolution for the second time. It is very unlikely that the vote will occur before they recess at the end of June; which means the second vote will likely occur in September after the Waiver rule is implemented. I wonder whether the DEP will delay the implantation of the rule pending this second vote. If the DEP does not voluntarily delay implantation, I know that the plaintiffs in the litigation over the Waiver Rule will seek a stay of its implementation to give the Appellate Division time to consider the case. For more information on the lawsuit and why the Waiver Rule is invalid, please take a look at my post: Waiver Rule: One Rule to Rule Them All!

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

Written by Mike Pisauro 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.

Other related posts:

NJ declares wind and solar energy as inherently beneficial
NJ Governor Canditates promote renewable energy, NJ needs more than rhetoric
Governor takes small steps for renewable energy, more needed.
Wind and Solar are ahead of coal in more than ways than one.
Federal RPS has been introduced

Perfect Storm for site remediation disaster

Written by Mike Pisauro on March 22nd, 2009 in Clean Up, legislation | 3 Comments »

On March 16th both Houses of the State Legislature passed the Licensed Site Professionals bill without very very few no votes. The bill will be on the Governor’s desk and it is expected that he will sign it with all haste.

With the LSP Bill, the DEP will have to undertake several things to implement the bill. They will have to implement a temporary licensing program for LSPs; remediation time frames, presumptive remedies, and support the LSP board once it the members are appointed among other activities. Additionally as the LSP does not automatically apply to current sites, the DEP will have to continue to oversee remediations for active sites. Once sites come in under the LSP program, DEP has to review all of the 1000s of documents that are generated from cleanups.

At the same time as the site remediation program’s responsibilities will increase in the short run, its budget will decrease. The Governor’s proposed budget reduces funding to site remediation by 4 million.

Environmentalist already had concern over the many loopholes in the bill and the lack oversight with a fully funded DEP; those concerns are magnified as the site remediation program is underfunded.  Remember 50% of the RAO reviewed by Mass DEP required more work or were invalidated.  How soon before something slips through the cracks here in NJ.

U.S. somehow is #1 for wind energy

Written by Mike Pisauro on December 31st, 2008 in legislation, Renewable Energy, Wind | No Comments »

The American Wind Energy Association noted in their 2008 Year End Review that the United States is #1 for wind energy production.  We as of September 2008 produce more than 21,000 megawatts of electricity from wind turbines.  AWEA’s news release is here.  Given the Bush administration’s lack of interest in renewable energy and the almost expired tax credits for renewable energy, this is fairly amazing.

With President Elect Obama’s professed support for renewable energy and NJ’s goal of 30% of our electricity coming from renewable sources in our new energy master plan, I hope NJ and the rest of the Country can improve on this milestone.  Given local opposition to the installation of wind turinbes in New Jersey I do have my doubts whether NJ will be a leader in wind energy.  That opposition comes from towns and individuals seeking to ban wind turinbes or objecting to their installation.  There is at least on bill in the legislature which would make it somewhat easier for a person or business to install wind turbines on their property but that bill cannot get a hearing in an Assembly committee and does not seem to be moving in the Senate either.

I have hopes, but I am not holding my breath.    Hopefully 2009 brings better things.

Governor does not veto Permit Extension Act

Written by Mike Pisauro on September 8th, 2008 in legislation | No Comments »

Unfortunately, the Governor did not listen to the call of environmentalists and signed the Permit Extension Act into law.  As I noted yesterday, this is bill is a mistake.

Enviros seek Governor's veto of Permit Extension Act

Written by Mike Pisauro on September 7th, 2008 in legislation | No Comments »

Last week, New Jersey’s environmental leaders called upon the Governor to conditionally veto the Permit Extension Act. Here is the Press Release on Permit Extension Act and a copy of the letter sent to the Governor. Letter to Governor. The Permit Extension Act was rushed through the legislature in short order and put on the Governors desk to sign at the end of June. See my previous posts here. and here and here. New Jersey’s Eastern Environmental Law Clinic released an analysis of the bill’s provisions that resurrects permits that have already expired and found that this provision may violate due process.   The Eastern Environmental Law Clinic also found that:

The retroactive nature of this clause has the potential to upset reasonable economic expectations, interfere with sound planning, result in anomalous outcomes breeding confusion and litigation, and could he illegal.  Eastern Environmental Law Clinic

So far the Governor has not signed the bill into law and that is a good thing, but he has not vetoed it either. If the bill is not vetoed than it becomes law by default.  It is a good thing because as I said in the press release:

“Sacrificing the environment for economics is a false choice that ends up hurting the economy, not improving it,” added Mike Pisauro of New Jersey Environmental Lobby. “The Permit Extension Act sacrifices the environment without providing any immediate economic help to those who need it. Government needs to protect our natural resources so that we have a healthy environment to live in and the economy has the natural resources it needs to develop and grow. The Permit Extension Act is not the answer.”

During all of the testimony that was presented in favor of the bill and all of the commentary that I have read about the bill, I have not seen once inch of explanation on how this bill will do anything to spur the economy in the short term. As I have said at the hearings on this bill, the problem is not that the permits expired but that the developers could not get funding for their projects before their permits expired. Extending those permits does not to provide funding for these projects now. If it does not to provide funding now, how does this bill help the economy now? How does this bill help men and women who are not working get back to work now? If the bill does not help the economy now is it worth the damage to the environment? I truly believe the answer is no.

0 to 60- Permit Extension Act passes both houses.

Written by Mike Pisauro on June 24th, 2008 in legislation | 1 Comment »

Yesterday, a much amended permit extension act was passed in both houses. It was approved by a vote of 70 -9 – 0 in the Assembly and 33 – 2 in the Senate. It now awaits the Governor’s signature. It took just 33 days from introduction to passage in the legislature.

The bullet train that will not stop

Written by Mike Pisauro on June 18th, 2008 in legislation | 2 Comments »

As I have noted in past blogs, the New Jersey Legislature is rapidly pushing through a bill that would toll the running of time on almost any governmental approval, permit, authorization, etc. It is scheduled to be considered in the Senate Economic Growth Committee tomorrow and in the full assembly on Monday. This bill is on the rocket path. It was introduced less than one month ago and will likely both houses by the end of next week. One wishes that good legislation would move so quickly. Bills involving renewable energy have taken months in in some instances over a year to move through committees and get considered by the legislature. Last year, there was a bill that would exempt renewable energy systems from increasing the value of your home for property taxes. That bill could not make it to the finish line last year and had to be reintroduced. It was a bill that not only would have a positive impact on the environment but also on the economy.

Despite the rhetoric the permit extension act will have no economic impact in the very near future. The day after this bill gets passed the economy will still be bad, financing will not be available for projects and the state will still be too expensive for many of us. One wishes that real economy boosting measures received the same effort as this false one.

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