Waiver Rule

The New Jersey Department of Environmental Protection will start enforcing the “Waiver Rule” (N.J.A.C. 7:1B) as of August 1, 2012. The Waiver Rule will give the NJDEP the authority to waive certain standards where those standards produce “unreasonable, unfair, or unintended results” that undermine the intent of the subject legislation. There is no automatic right to a waiver which will be granted on a case-by-case basis. To obtain a waiver an applicant must demonstrate one of the following:

1. There is a public emergency that has been formally declared
2. Conflicting rules adversely impacting a project or preventing an activity from proceeding
3. A net environmental benefit would be achieved.
4. Undue hardship is being imposed by the rule requirement

BY: Andrew S. Kohut, Esq., Associate Attorney practicing in the firm’s Land Use and Real Estate departments.

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