On December 5, 2022, NJDEP published notice of its intent to adopt new rules in connection with Stormwater Management and the Flood Hazard Area Control Act (“FHA”). Given the impacts of increased flooding and stormwater runoff caused by climate change NJDEP argues that stricter requirements for controlling stormwater and development in flood-prone areas are needed. Therefore, the new rules propose to eliminate existing methods of calculating stormwater impacts and instead require that stormwater best management practices (“BMP’s”) be based on current and anticipated future precipitation data. In addition, the rules raise the design flood elevation two feet higher than currently indicated on NJDEP state flood maps and three feet higher than indicated on FEMA maps. Where an applicant instead retains a licensed professional engineer to calculate the design flood elevation, the rules require the engineer to use future projected precipitation data from the year 2100 as a basis for the calculation. Permits issued under the FHA will also be required to conform with Uniform Construction Code (“UCC”) standards and meet the requirements of FEMA’s National Flood Insurance Program (“NFIP”).
The impact of these rule changes will be considerable for development projects in New Jersey. Larger stormwater maintenance footprints may decrease the size of the developable portion of a property. The raised flood elevations may restrict development in areas that currently do not fall within the flood hazard area and builders may find it difficult and costly to obtain permits.
NJDEP is, however, allowing certain projects to be “grandfathered,” although the criteria to qualify is stringent. To be “grandfathered” from the FHA requirements, the project must have a valid FHA approval or have already submitted a complete FHA application before the new rules are adopted. If the project did not need a FHA permit prior to rule adoption, the project must receive all necessary Federal, State and local approvals prior to the rule adoption date and construction must commence prior to the rule adoption date.
To be “grandfathered” from the stormwater requirements, if the project needs a FHA approval, Coastal Zone Management approval, Freshwater Wetlands approval, or Highlands approval, a complete application for such must be submitted to NJDEP prior to rule adoption. If the project does not need an NJDEP approval list above, complete municipal applications pursuant to the Municipal Land Use Law must be submitted to the local municipality prior to rule adoption.
A virtual public hearing on the new rules will take place on January 11, 2023 and written comments may be submitted to NJDEP electronically or on paper until February 3, 2023.
Prospective purchasers of properties seeking environmental liability protections under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) are required to conduct All Appropriate Inquiry (“AAI”) to investigate both who the prior owners of the property were and how the property was historically used. As part of that due diligence process, the prospective purchaser retains an environmental consultant to conduct a Phase 1 Environmental Site Assessment (“ESA”) to evaluate the environmental conditions on the property and determine if past releases of hazardous substances have occurred or may occur in the future.
Currently, Phase I ESA’s are required to meet the standards of ASTM International E1521-13 (established in 2013) to satisfy the AAI requirements. However, effective February 13, 2023, Phase I ESA’s must meet the standards of ASTM International E1527-21 to satisfy the AAI requirements. E1527-21 updates the standards to include emerging contaminants, including the ones known as PFAS (per- and polyfluoroalkyl substances).
There will be a one-year “phase-out” period where reports may meet either the E1521-13 or E1527-21 standards until February 13, 2024. After that date, the E1527-21 standards must be met. As these new standards may add time and expense to the due diligence process, Prospective purchasers, their consultants and lenders should all be aware of this new requirement and deadline when seeking liability protections under CERCLA.
From an environmental perspective, the ban on single-use bags that took effect in May 2022 has been a success. According to NorthJersey.com, the ban has eliminated approximately 68 million paper bags and 3 billion plastic bags since the law was enacted. However, there are still certain aspects of the ban that some New Jersey businesses and their customers are finding problematic.
Due to the Covid-19 pandemic, the number of people who have their groceries and essential goods delivered by supermarkets and third-party delivery services is higher than ever before. Currently, those customers must pay for reusable bags to hold their delivered goods and then are left with no means to dispose of those bags, essentially turning them into “single-use” bags anyway.
A new bill (S3114/A4741) winding its way through the legislature aims to correct this issue. If passed, it would require stores and delivery services to establish a “takeback” program to collect and sanitize the reusable bags, recycle the reusable bags or donate them to food pantries. The bill would also allow grocery stores to use recycled paper bags and cardboard boxes for home deliveries for the next three (3) years. Paper bags would remain off-limits to in-store shoppers.