The New Jersey Department of Environmental Protection (NJDEP) will begin accepting waiver rule applications on August 1, 2012. According to NJDEP Commissioner Bob Martin, "This rule provides us with a modest measure of flexibility to manage special circumstances but through a process that will be used under limited circumstances and with total transparency."
In one of his first official acts, New Jersey Governor Chris Christie issued Executive Order #2 establishing a "waiver rule" that could be applied to certain environmental regulations enforced by NJDEP. The waiver rule allows NJDEP to grant exemptions if:
- the rule conflicts with another NJDEP rule or a rule of another state or federal agency in a way that makes compliance with both rules impossible or impracticable;
- strict compliance with the rule would result in actual and exceptional hardship or excessive cost where there is a cheaper alternative that is as or more protective of the public or the environment;
- there will be, despite the waiver, a net protection of the natural resource or other environmental good being waived; or
- an authorized federal or state official declares a public emergency justifying the waiver.
This rule would likely provide needed relief from technical "catch-22s" that have led to protracted and expensive development delays, even where every effort has been undertaken to comply with NJDEP's often-inconsistent maze of rules.
Businesses or individuals with current or anticipated disputes with NJDEP over the strict application of a regulatory requirement should consider whether the waiver rule might apply to their situation.