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DEP Denies Public Records Request For List Of Exempt “Legacy” Projects

Developer Gold Rush Underway To Submit Permit Applications To Exploit Exemptions

Largest Loophole In DEP History

I)  In The Beginning

In the beginning, there was the [DEP] word – dripping with patronizing arrogance:

To understand the discussion regarding the science of climate change and the related policy decisions that follow, it is helpful to have an understanding of the current underlying principles of climate science.

So, if you oppose this proposal, you are either ignorant of or deny the “current underlying principles of climate science”.

I can not imagine a worse way to begin a regulatory tome of 1,044 pages of sesquipedalian regulatory jargon – whose scope harkens back to and is likely headed down the same road as the failed McGreevey DEP “Big Map” – and one that the Murphy DEP has delayed for almost 7 years.

Yeah, smart move: condescend to and insult the reader right out of the gate.

II)  Gaping “Legacy” Loopholes

But if you can get that far, you’ll find buried on page 214 of the DEP’s 1044 page proposal, the largest loophole in DEP history – for so called “legacy projects”:

complete applications submitted before new requirements become effective are subject to the standards in place before those amendments are adopted. (N.J.A.C. 7:8-1.6 Applicability to Major Development)

[Note: Even larger than prior loopholes.]

Translation: if you submit permit applications before the effective date of the rule – which could be sometime in early 2026 – then you are exempt from the new requirements. A get out of jail free card – and advertised prominently by DEP.

Here’s how one of NJ’s most politically powerful law firms is marketing this loophole to its developer clients:

“Legacy (previously, grandfathering) provisions remain consistent with current NJDEP rules and depend largely on securing relevant approvals or the filing of a complete application before the rules become effective. Applications submitted before the effective date and declared technically complete will qualify for legacy status.”

What the hell is “legacy status”? It’s code for loophole.

Obviously, this is a major concession to the development community and an invitation to “come on in” abuse. It will stimulate a new gold rush, as lawyers and developer’s engineers submit permit applications to evade the new requirements. That volume of permit applications will overwhelm DEP staff resources and result in even more cursory rubber stamp certifications of “complete” “legacy” permit applications (DEP must issue a decision in less than 90 days).

Accordingly, those “legacy loopholes” will lead to an acceleration and increase in new development in hazardous and environmentally sensitive locations, which is exactly the opposite of DEP’s purported goals of reducing climate vulnerability and protecting the environment. 

When I served in DEP, we KNEW how the effective date of regulatory requirements impacted the incentives for new development, so we put controls in place, e.g.: In the Highlands Act, the legislature made the effective date of the law retroactive to the date the bill was introduced in the legislature. In the DEP Category One stream buffer rules, we provided “transition rules” to prevent abuse.

The DEP also limited grandfathering in a prior adoption of flood hazard rules to similarly limit abuse.

But reliable DEP sources tell me that the Commissioner did NOT support staff proposed limits on grandfathering.

Even worse, the Commissioner also opposed staff recommended “no build zones”, which I will discuss in a future post.

III)  DEP Abuses OPRA To Conceal The Extent Of Loophole Abuse

Given the significance of this “legacy loophole”, I filed an OPRA public records request for development permit applications that had been filed to date to claim “legacy status”.

In my experience, DEP tracks this information as part of their permit database, which they are required by law (“Doria” or “EMAP”) to maintain and publicly Report annually.

DEP has been in violation of the Doria legal reporting mandate for years, and the legislature and media and environmental groups have all given them a pass for a blatant legal violation.

The DEP denied my OPRA request on the following sham basis:

The NJDEP has denied the aspect of reviewing every application received since the “Real Rule” was published to determine if any applicant has mistakenly requested “legacy status” on the basis that it requires the NJDEP to conduct research & correlate data, which is not required pursuant to N.J.S.A. 47:1A-9 & Mag Entertainment v. Div. of Alcoholic Beverage Control 375 N.J. Super 537 (App. Div. 3/05). – 08/14/2024

The DEP does NOT have to conduct “research” to obtain this information.

The DEP maintains and tracks this information in permit databases.

And if they don’t, they are not only violating the Doria law, they are flying blind and proposing grandfathering legacy loopholes with no clue of the impacts – which is gross mismanagement as well.

The Murphy DEP delayed proposing these rules for almost 7 years after they promised to do so.

IV)  Over A Decade Of Delay

The DEP cites scientific and policy recommendations that are more than a decade old (Rutgers study):

In response to a stakeholder engagement process between 2012 and 2014, Rutgers University, on behalf of the NJ Climate Adaptation Alliance (NJCAA), convened a Science and Technical Advisory Panel (STAP) to help identify planning options for practitioners to enhance the resilience of New Jersey’s people, places, and assets to regional sea-level rise (SLR), coastal storms, and the resulting flood risk.

The Murphy administration repeatedly signaled that these rules were coming, in press releases and Governor Murphy’s Executive Orders, for over 5 years.

The DEP proposal itself acknowledges decades of disaster and delays:

In New Jersey, major flood events were observed in 2000, 2004, 2005, 2006, 2007, 2010, 2011, 2012, 2016 (NJDEP, 2020), and most recently in 2021, associated with the remnants of Tropical Storm Ida. According to the 2019 State Hazard Mitigation Plan, NOAA’s National Climatic Data Center (NCDC) database reported that New Jersey experienced 1,582 flood events in a 63-year period beginning in 1950 and ending in 2012 (NJ Office of Emergency Management, 2019).

So the private sector (banking, insurance) and the development community had years to prepare and design and finance projects and submit permit applications to DEP to exploit “legacy loopholes”.

In addition to the huge delays in proposing regulations, the DEP provided a 90 day comment period. Given the intense opposition to this rule from developers, DEP is likely to take months preparing responses to comments.

I was told that it took over 3 months for the Office of Administrative Law (OAL) – who reports to Governor Murphy – to publish the DEP proposal in the NJ Register. This typically takes a few weeks. So, that delay is unacceptable and suggests that the Gov. Office is either opposed or has not made this a priority.

DEP, OAL and Gov. Office similar delays will likely take the effective date of these rules – if the Legislature doesn’t veto them or Courts invalidate them – into early 2026.

V)  Big Map 2.0?

Finally, DEP proposed a massive omnibus comprehensive set of rule amendments, instead of taking smaller permit program specific bites incrementally over the 7 year term.

Strategically, DEP made the same error on “The Big Map” – and we know how that turned out.

(subsequent posts will focus on the merits, particularly the NJ BIA Big Lie that this proposal represents “strategic retreat” from the coast.

We’ve long advocated “strategic retreat”, and DEP’s Coastal Zone Management Plan once even stated that as a policy that needed to be fleshed out. That CZMP text was deleted by the Christie DEP. So, we know that – just like “Senator, you’re no Jack Kennedy” – that this proposal is not strategic retreat, but affirmatively designed to promote development.)