Tagged: Stormwater

Landmark Flood Disclosure Bill Now Law in New Jersey, Applies to Both Commercial and Residential Property

On June 30, 2023, the New Jersey General Assembly unanimously passed Bill S3110/A4783, which will require sellers of real property and landlords to make specific disclosures regarding a commercial or residential property’s flood risk. The bill was amended to concur with the recommendations of Governor Murphy’s May 8, 2023, Conditional Veto Statement and was enacted into law upon passage. New Jersey was previously one of less than half of the states in the country that did not require any flood disclosures for real estate transactions. Landlord & Seller Flood Disclosure Requirements Specifically, Senate Bill No. 3110 requires landlords and sellers of commercial or residential real property to disclose to prospective tenants and buyers if a property is located in an area designated by the Federal Emergency Management Agency (FEMA) as a Special Flood Hazard Area (known as the 100-year flood plain) or Moderate Risk Flood Hazard Area (known as the 500-year flood plain), and if the property has suffered flood damage in the past to the owner’s knowledge. Sellers are also required to disclose additional facts related to the property’s flood insurance and flood damage history. Additionally, landlords are required to notify tenants of the possible availability of flood insurance via the National Flood Insurance Program. The New Jersey Department of Community Affairs (NJDCA) is...

USEPA Provides Draft Guidance on Application of “Functional Equivalent” Analysis for Clean Water Act Permitting Program

The United States Environmental Protection Agency (USEPA) issued a Draft Guidance Memorandum regarding how to apply the Supreme Court’s most recent Clean Water Act decision in County of Maui v. Hawaii Wildlife Fund from earlier this year. In that case (which we previously wrote about here and here), the Court held that the Clean Water Act Section 402 National Pollutant Discharge Elimination System (NPDES) program requires a permit where there is a “functional equivalent of a direct discharge” from a “point source” into “navigable waters.” As the USEPA draft guidance notes, the Court’s decision outlines “seven non-exclusive factors that regulators and the regulated community may consider in determining whether a “functional equivalent of a direct discharge” exists in a particular circumstance. The draft guidance aims to place the functional equivalent standard “into context within existing NPDES permitting framework.” Additionally, the draft guidance “identifies an additional factor” relevant to the analysis. The draft guidance emphasizes that the County of Maui decision did not modify the two threshold conditions that trigger the requirements for a permit. These conditions are that there must be an actual discharge of a pollutant to a water of the United States, and that that discharge must be from a point source. “Instead, Maui clarified that an NPDES permit is required for only...

Jordan Asch to Participate in Upcoming NJSBA Panel Discussion – “Resolving Everyday Environmental Problems” – November 5

Jordan M. Asch, an Associate in the Gibbons Environmental Department, will participate in an upcoming panel discussion presented by the New Jersey State Bar Association, in cooperation with its Environmental Law Section. The panel, “Resolving Everyday Environmental Problems,” will take place virtually on Thursday, November 5 from 9:00 – 10:30 am. The discussion will cover some of the complex, and often expensive, environmental issues that small businesses and homeowners may face, including site remediation issues, funding sources, environmental permitting, and the permitting process. Attorneys who represent small business owners that own or lease real property, or that may develop or improve real property, as well as homeowners that may face environmental remediation or permitting issues are encouraged to attend. For additional information or to register, click here.

Governor Murphy Signs Stormwater Utilities Bill Into Law

On March 18, 2019, New Jersey Governor Phil Murphy signed legislation authorizing municipalities (and other public entities) to establish utilities for the creation and management of stormwater infrastructure. The legislation, S1073, also known as the Clean Stormwater and Flood Reduction Act (the “Act”), provides that a governing body of a county or municipality may create a stormwater utility “for the purposes of acquiring, constructing, improving, maintaining, and operating stormwater management systems.” The Act also allows municipalities and counties that have established sewerage authorities to request that the authority create a stormwater utility, so that the functions of the utility would be managed by the existing authority rather than the municipality(ies) or county directly. Perhaps most importantly, the Act authorizes stormwater utilities to “charge and collect reasonable fees and other charges” to recoup the costs incurred by the utility in performing stormwater management in the subject locality. Under the Act, charges may be assessed against the owner or occupant, or both, of any real property from which stormwater enters a stormwater management system. The Act also includes provisions allowing municipalities, etc. that establish stormwater utilities to issue bonds to fund stormwater management systems, and imposes reporting requirements on utilities and rulemaking obligations on the New Jersey Department of Environmental Protection. The passage and signing of the...

Executive Order Spells Uncertainty for Pending EPA Rules

On January 30, 2017, as promised during his campaign, President Trump signed an executive order requiring federal agencies to identify two regulations to be repealed for every new regulation that is created. The order comes on the heels of a January 20, 2017 memorandum from White House Chief of Staff Reince Priebus directing agency heads to freeze new or pending regulations including those that had been finalized but not yet published in the Federal Register. The “one in, two out” rule and regulatory freeze spell uncertainty for regulations currently in the pipeline for adoption by the Environmental Protection Agency (“EPA”), including the proposed financial assurances rules for the hardrock mining industry we have previously covered here. Other impacted EPA rule proposals include a stormwater general permit designed to reduce polluted runoff from construction sites and a rule which would include vapor intrusion as a method of evaluating contamination levels at potential Superfund sites. At present, it is unclear how the administration’s actions will ultimately impact any pending EPA regulations (or those of other federal agencies). The environmental attorneys at Gibbons P.C. will be closely monitoring any further executive action impacting proposed EPA rules and report on any important developments.

NJ Legislature Considers Invalidating NJDEP Regulations

On June 1, 2015, after significant outreach to the relevant stakeholders, the New Jersey Department of Environmental Protection (NJDEP) released for public comment sweeping proposed changes to the rules governing Coastal Zone Management (CZM), N.J.A.C. 7:7E-1.1 et seq., Stormwater Management (SWM), N.J.A.C. 7:8-1.1 et seq., and the Flood Hazard Area Control Act (FHACA), N.J.A.C. 7:13-1.1 et seq. However, the New Jersey Legislature is poised to use its constitutional authority to find that the proposed regulations are inconsistent with the legislative intent of the enabling statutes.

The Deposition Not Taken: Eighth Circuit Holds Third Party Document to be Business Records of Another Entity Admissible Under FRE 803(6)

In Residential Funding Co., LLC v. Terrace Mortgage Co., (Docket No. 12-2569, August 7, 2013) the Eighth Circuit upheld a grant of summary judgment, including damages evidenced by records created by a third party and supported by the third party’s affidavit. Ordinarily, an affidavit of a third party, if authenticated under FRE 902(11) (See Klock, New Jersey Practice, V2D, 555 (West 2009) is admissible if an appropriate foundation is laid. See Klock, New Jersey Practice, V2E, 342-43 (West 2012). Proper authentication requires notice of intent to use the affidavit. The affidavit in question apparently was not authenticated in that manner.

In Clean Water Act Case, Three Justices Invite Future Challenge to Rule of Deference to Agencies in Interpretation of Their Own Regulations

A victory in the Supreme Court is generally welcome news for the U.S. Environmental Protection Agency (EPA). But, the Court’s decision last month in a Clean Water Act case may foreshadow a sweeping change in administrative law that would certainly not please EPA or other agencies: the end of a long-standing rule of judicial deference to agencies in the interpretation of their own regulations.

Another Edition of “No Addition”: Supreme Court Applies Precedent to Confirm Plaintiffs’ Concession That Movement of Water Within River Channel Was Not a “Discharge”

The answer you get depends on the question you ask. That’s the take-home lesson from the Supreme Court’s decision in Los Angeles Flood Control District v. Natural Resources Defense Council. All parties agreed on the answer to the specific question on which the Court granted certiorari. The Court, applying its own 2004 precedent, said they were correct — there was no “discharge” that violated the District’s permit because the flows in question simply went from one part of the same river system to another. The Court never reached the alternative ground for liability urged by the plaintiffs because it went beyond that narrow question. The result? A reversal and a win for the District on essentially procedural grounds.

USEPA Grants Technical Assistance to Coopers Ferry Partnership to Study SMART Initiative in Camden, N.J.

On July 19, 2012, Coopers Ferry Partnership was one of 17 community partners selected by the U.S. Environmental Protection Agency (“EPA”) to receive technical assistance as part of its 2011 strategic agenda to renew support for green infrastructure and promote its effective implementation. The Coopers Ferry Partnership will receive $70,000 to advance projects aimed at reducing water pollution in Camden, New Jersey.