The devastation caused by Hurricane Sandy is massive and the loss of lives, homes and belongings is heartbreaking. The recovery effort will present many practical challenges and legal issues. Those who seek to reconstruct destroyed or damaged property will likely need to address environmental issues, particularly in the coastal areas. Department of Environmental Protection (“DEP”)Commissioner Martin issued an Administrative Order, approved by Governor Christie, to help facilitate the rebuilding effort by reducing some of the administrative burden typically associated with the environmental regulatory process for construction in coastal areas. The Order temporarily waives some DEP permitting requirements applicable under the Flood Hazard Area Control Act, Freshwater Wetlands Protection Act, and CAFRA rules for certain in-kind repair and/or replacement of public infrastructure by governmental agencies. The Order recognizes the need to protect public health and safety through sound infrastructure, and expedited infrastructure improvements will in turn help promote private reconstruction and redevelopment efforts. In the coming days and weeks, it is anticipated that DEP will provide additional guidance and hopefully relief to those in the private sector affected by the devastating impacts of Hurricane Sandy. In the interim, individuals and non-governmental entities can rely on DEP rules that exempt certain reconstruction activities within regulated areas from some permitting requirements. For example, the CAFRA rules exempt the in-kind/in-place reconstruction of structures legally existing as of July 19, 1994 or reconstruction further landward where movement of the structure further in-land would reduce environmental impacts. Additionally, reconstruction activities may take place where previously issued approvals remain valid. For example, Waterfront Development Permits for structures such as docks and bulkheads below the mean high water line remain valid for a fixed five year term. Where a permit remains valid, reconstruction and repair can take place without additional approval from NJDEP provided the various conditions of the approval are satisfied. Where regulated areas such flood hazard areas, wetlands and coastal areas overlap, consideration must be given to all potentially applicable DEP programs. Those with questions about permitting requirements that may exist should seek the advice of counsel.
