Gibbons Law Alert

Gibbons Law Alert

Tagged: Wetlands

The Price Must Be Right: U.S. Supreme Court Extends “Nexus” and “Rough Proportionality” Requirements to Monetary Exactions Linked to Development Proposals

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Posted in Development/Redevelopment

On July 3, 2013

It has long been the law that regulators may not condition the grant of a land-use permit on the owner’s relinquishment of an interest in the property unless there is both a “nexus” and “rough proportionality” between the government’s demand and the effects of the proposed land use. In a case that may have been overlooked amidst several landmark decisions handed down in the same week, the U.S. Supreme Court ruled that these requirements also apply to monetary exactions.

May I Come In?: N.J. Supreme Court Approves Warrantless DEP Searches of Residential Property Subject to Freshwater Wetlands Permit

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Posted in Environmental and Green Issues

On May 6, 2013

In a unanimous decision that was at once sweeping and limited, the New Jersey Supreme Court held that the Department of Environmental Protection (DEP) need not obtain a warrant before entering a residential parcel to ensure compliance with the terms of a wetlands permit. The Court stopped short of a blanket validation of all warrantless searches under the wetlands statute, or of all warrantless searches of residential property subject to any sort of permit, instead grounding its holding in the protections afforded by the process that DEP must follow, and limiting it to searches of properties that are subject to a wetlands permit.

NJDEP Temporarily Waives Permitting Requirements For Rebuilding Infrastructure After Sandy

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Posted in Development/Redevelopment / Environmental and Green Issues

On November 19, 2012

On November 3, 2012, less than five days after Hurricane Sandy washed away much of the Jersey Shore and its infrastructure, NJDEP Commissioner Bob Martin signed Administrative Order No. 2012-13 (the “Order”), temporarily waiving permitting requirements for State, County and Municipal agencies seeking to rebuild after the storm. The swift action of NJDEP unleashed a storm of its own from critical environmentalists worried that the rush to rebuild the devastated areas would recreate the same vulnerabilities.

Unanimous Supreme Court Allows Pre-Enforcement Review of Clean Water Act Compliance Orders

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Posted in Environmental and Green Issues

On March 26, 2012

The U.S. Supreme Court unanimously held on March 21 that an Idaho couple who had received a compliance order from the U.S. Environmental Protection Agency (EPA) for allegedly illegal filling of wetlands could directly challenge the order in court, and did not have to wait until EPA filed a lawsuit to enforce the order in court before obtaining judicial review of its validity. The opinion completely changes the rules of the game in EPA’s enforcement of the Clean Water Act, and gives landowners a powerful new tool to dispute what they see as erroneous EPA determinations.

Either/Or: Third Circuit Reads Rapanos as Establishing Two Alternative Tests for Federal Regulatory Jurisdiction Over Wetlands

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Posted in Environmental and Green Issues

On November 7, 2011

The Clean Water Act regulates the placement of fill into the “waters of the United States.” That term has come to include wetlands — or at least some wetlands. The Supreme Court’s last attempt, in Rapanos v. United States, to clarify which wetlands fall within the statute’s coverage caused great confusion, as the five Justices who agreed on the judgment (a four-Justice plurality led by Justice Scalia, and Justice Kennedy, who concurred separately) generated two separate tests for jurisdiction. Which test should lower courts apply? In an opinion released on October 31, the Third Circuit said, “both” — if the wetlands in question satisfy either Justice Scalia’s test or Justice Kennedy’s test, they fall within the statute’s reach.

NJDEP Site Remediation Implements Steps to Increase Permit Efficiency

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Posted in Development/Redevelopment / Environmental and Green Issues

On February 3, 2011

One perennial criticism leveled at the Department of Environmental Protection (“NJDEP”) is that it takes too long to issue permits. There have been a long list of initiatives intended to ensure that the NJDEP makes permit decisions which are predictable and timely. Indeed, Commissioner Martin has repeatedly commented on the need to ensure that NJDEP perform efficiently and focus on servicing all stakeholders – including applicants, and included this goal in his 2010 Vision Statement for the department. At long last, NJDEP appears to be taking concrete steps to implement efficiencies in the permit process. On January 27, 2011, NJDEP announced that it would begin to tackle this problem by changing the way it processes the most common land-use permits for contaminated sites and landfill closures.

Time-out: Pennsylvania Passes Permit Extension Act

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Posted in Development/Redevelopment

On July 16, 2010

Last week, Governor Rendell signed the Permit Extension Act (“Act”) into law as part of the approval of the budget, breathing life into expired and expiring permits and the development projects they represent. The Act, found at pages 99-110 of the budget bill, extends the expiration date of many governmental approvals, permits and agreements, including building permits and construction permits, relating to construction and development projects.

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