On September 8, 2020, the NJ Department of Environmental Protection (“DEP”) issued a Public Notice pursuant to the New Jersey Permit Extension Act of 2020, P.L. 2020, c. 53 (the “Act”), which extended the term of numerous government permits and approvals that were in effect on March 9, 2020. The Act suspends the running of the periods of eligible permits and approvals from March 9, 2020 until six (6) months after the end of the Public Health Emergency declared by Governor Murphy in response to COVID-19.
In order to take advantage of the Act, any eligible permit or approval has to be registered with the DEP by October 8, 2020. Registration can be made at www.nj.gov/dep/pea2020.
According to the Public Notice, the purpose of the extension is to “prevent the abandonment of approved projects and activities, and the waste of public and private resources that would result if such projects and activities were required to repeat the application and approval process.”
Anyone, including a developer, professional, lawyer, or consultant, can register a permit or approval, not just the person or entity to whom the permit or approval was issued. For example, certain approvals such as a Treatment Works Approval (TWA) are typically in the name of a municipal entity, but a developer or its designee should register the approval itself just to be safe. To be clear: the running period of any approval not registered by October 8, 2020 will NOT be suspended for the COVID-19 extension period. In other words, the failure to register a permit or approval is fatal to any future effort to claim the extension, so the guiding mantra for permits and approvals is: “If in doubt, register!”
The list of permits and approvals that need to be registered with the DEP include a broad range of State and local approvals, not just those issued by the DEP. Subject to certain exceptions listed below, the list of permits and approvals covered by the Act, which all need to be registered with the DEP, include the following:
- Preliminary and final approval granted in connection with an application for development pursuant to the Municipal Land Use Law, J.S.A. 40:55D-1 et seq.;
- Approval issued by a county planning board pursuant to Chapter 27 of Title 40 of the Revised Statutes;
- Any approval of a soil erosion and sediment control plan granted by a local soil conservation district under the authority conferred by J.S.A. 4:24-22 et seq.;
- Waterfront development permit issued pursuant to J.S.A. 12:5-1 et seq.;
- Permit issued pursuant to The Wetlands Act of 1970, J.S.A. 13:9A-1 et seq.;
- Permit issued pursuant to the Freshwater Wetlands Protection Act, J.S.A. 13:9B-1 et seq.;
- Approval of an application for development granted by the Delaware and Raritan Canal Commission pursuant to the Delaware and Raritan Canal State Park Law of 1974, J.S.A. 13:13A-1 et seq.;
- Permit issued pursuant to the Hackensack Meadowlands Reclamation and Development Act, J.S.A. 13:17-1 et seq.;
- Approval of an application for development granted by the Pinelands Commission and determination of municipal and county plan conformance pursuant to the Pinelands Protection Act, J.S.A. 13:18A-1 et seq., including all underlying municipal, county, and State permits or approvals within the regional growth areas, villages, and towns, designated in the comprehensive management plan prepared and adopted by the Pinelands Commission pursuant to section 7 of the Pinelands Protection Act, N.J.S.A. 13:18A-8;
- Permit issued and center designations pursuant to the Coastal Area Facility Review Act, J.S.A. 13:19-1 et seq.;
- Septic approval granted pursuant to Title 26 of the Revised Statutes;
- Permit granted pursuant to J.S.A. 27:7-1 et seq., or any supplement thereto;
- Right-of-way permit issued by the Department of Transportation pursuant to paragraph (3) of subsection (h) of J.S.A. 27:1A-5;
- Approval granted by a sewerage authority pursuant to the Sewerage Authorities Law, J.S.A. 40:14A-1 et seq.;
- Approval granted by a municipal authority pursuant to the Municipal and County Utilities Authorities Law, J.S.A. 40:14B-1 et seq.;
- An agreement with a municipality, county, municipal authority, sewerage authority, or other governmental authority for the use or reservation of sewerage capacity;
- Permit granted pursuant to the State Uniform Construction Code Act, J.S.A. 52:27D-119 et seq.;
- Plan endorsement and center designations pursuant to the State Planning Act, J.S.A. 52:18A-196 et seq.;
- Permit or certification issued pursuant to the Water Supply Management Act, J.S.A. 58:1A-1 et seq.;
- Permit granted authorizing the drilling of a well pursuant to J.S.A. 58:4A-5 et seq.;
- Certification or permit granted, exemption from a sewerage connection ban granted, wastewater management plan approved, and pollution discharge elimination system permit pursuant to the Water Pollution Control Act, J.S.A. 58:10A-1 et seq.;
- Certification granted pursuant to The Realty Improvement Sewerage and Facilities Act (1954), J.S.A. 58:11-23 et seq.;
- Certification or approval granted pursuant to J.S.A. 58:11-25.1 et seq.;
- Certification issued and water quality management plan approved pursuant to the Water Quality Planning Act, J.S.A. 58:11A-1 et seq.;
- Approval granted pursuant to the Safe Drinking Water Act, J.S.A. 58:12A-1 et seq.;
- Permit issued pursuant to the Flood Hazard Area Control Act, J.S.A. 58:16A-50 et seq.; and
- Any municipal, county, regional, or State approval or permit granted under the general authority conferred by State law, rule, or regulation, or any other government authorization of any development application or any permit related thereto, whether that authorization is in the form of a permit, approval, license, certification, permission, determination, interpretation, exemption, variance, exception, waiver, letter of interpretation, no further action letter, agreement, or any other executive or administrative decision that allows a development or governmental project to proceed.
The following are not extended by the Act:
- The time period of any government approval that expired before March 9, 2020;
- Any permit or approval issued by the government of the United States or any agency or instrumentality thereof, or any permit or approval for which the duration of, or date or terms of its expiration are specified or determined by law or regulation of the Federal government or its agencies or instrumentalities;
- Any permit or approval issued pursuant to the Pinelands Protection Act, J.S.A. 13:18A-1 et seq., if the extension would result in a violation of Federal law, or any State rule or regulation requiring approval by the Secretary of the Interior pursuant to 16 U.S.C. § 71i;
- Any permit or approval issued within the preservation area of the Highlands Region, defined at J.S.A. 13:20-3;
- Any permit or approval issued by the Department of Transportation pursuant to Title 27 of the Revised Statutes or under the general authority conferred by State law, other than a right-of-way permit issued pursuant to paragraph (3) of subsection (h) of J.S.A. 27:1A-5 or a permit granted pursuant to N.J.S.A. 27:7-1 et seq., or any supplement thereto;
- Any permit or approval issued pursuant to the Flood Hazard Area Control Act, except (a) where work has commenced, in any phase or section of the development, on any site improvement as defined in paragraph (1) of subsection a. of section 41 of the Municipal Land Use Law, J.S.A. 40:55D-53, or on any buildings or structures; or (b) where the permit or approval authorizes work on real property owned by the government or the Federal government;
- Any coastal center designated pursuant to the Coastal Area Facility Review Act; or
- Any permit or approval within the Highlands planning area located in a municipality subject to the Highlands Water Protection and Planning Act, that has adopted in accordance with a Highlands Water Protection and Planning Council conformance approval, a Highlands master plan element, a Highlands land use ordinance, or an environmental resource inventory, except that the provisions of this paragraph shall not apply to any permit or approval within a Highlands center designated by the Highlands Water Protection and Planning Council, notwithstanding the adoption by the municipality of a Highlands master plan element, a Highlands land use ordinance, or an environmental resource inventory.
Under Executive Orders 119, 138, 151, 162 and 171 (issued April 7, May 6, June 4, July 2 and August 1, 2020, respectively), the Governor has declared a statewide “Public Health Emergency.” Pursuant to N.J.S.A. 26:13-3(b), a “Public Health Emergency” declaration automatically expires after thirty (30) days if it is not renewed. The DEP notice in the NJ Register about registering approvals extended under the Act can be found here.
This has been prepared by Sills Cummis & Gross P.C. for informational purposes only and does not constitute advertising or solicitation and should not be used or taken as legal advice. Those seeking legal advice should contact a member of the Firm or legal counsel licensed in their state. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship. Confidential information should not be sent to Sills Cummis & Gross without first communicating directly with a member of the Firm about establishing an attorney-client relationship.