Home > Uncategorized > Warehouse Developers Rush To Get Land Use Permit Applications Deemed Complete By DEP To Dodge Long Delayed New Climate PACT Rules

Warehouse Developers Rush To Get Land Use Permit Applications Deemed Complete By DEP To Dodge Long Delayed New Climate PACT Rules

Gold Rush At DEP Highlights The Need For An Administrative Moratorium

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While the environmental groups are AWOL (or more correctly, they are off on social justice tangents) and the press continues to report proliferating warehouse sprawl as a “local home rule” issue (thus letting the Murphy administration planners and DEP off the hook), warehouse developers are quietly behind the scenes ramming permit applications through DEP to skirt the long delayed DEP “climate PACT rules”.

[Update: 6/23/22 – On the day after I wrote this, NJ Spotlight reports that environmental groups wrote Gov. Murphy a letter! After 5 years of green cover & Stakeholder compromise!]

A case in point just emerged in Chesterfield NJ, where a real estate development company known as “Active Acquisitions, OY, LLC” rushed wetlands and flood hazard area permit applications to DEP on June 17, 2022 for another warehouse development.

This post is not intended to discuss the specifics of that warehouse project, but instead let me briefly explain how the DEP rules work.

DEP regulates land use under permit programs established by several NJ State laws, including the Coastal Zone Management Act, the Freshwater Wetlands Act, the Flood Hazard Area Control Act, the Highlands Act, the Water Quality Management Act and stormwater laws.

Developers must submit permit applications and secure DEP permit approvals for developments that trigger these laws.

DEP has a sequential 4 step process for reviewing permits (5 steps, if you count the secret “pre-application conference” step, where DEP coaches applicants on how to comply with DEP rules):

1) the application is reviewed to determine if it is “administratively complete”. DEP basically follows a checklist of regulatory requirements; then

2) the application is then review to determine if it is “technically complete”; then

3) DEP reviews the permit, determines if it complies with regulatory requirements, and if so, issues a draft permit for public comment; and then

4) DEP issues a public notice, provides for public comment, holds a public hearing if requested by the public, and then responds to public comments and either issues the final permit or denies the permit

A permit application for development is reviewed under the regulations in effect at the time the permit application is submitted. The trigger to application of the rules in effect occurs when DEP deems a permit application “administratively complete”.

DEP has announced, for over 2 years, that there are major changes pending in land use permit regulations under DEP’s “Climate PACT” initiative, which was prompted by several Executive Orders by Governor Murphy. None of those Executive Orders address the issues of timing or regulations and permit applications, or what the lawyers call either “transition rules” or “grandfathering”.

That regulatory heads up has created huge incentives for developers to rush permit applications to DEP to come in under the old lax rules and avoid the more stringent and costly new requirements of new climate oriented rules.

This gold rush illustrates the need for an administrative moratorium – basically a timeout until the new rules are in place.

But DEP is doing nothing to avoid or reduce this huge problem.


Surely, DEP Commissioner Latourette knows all about this – he was a corporate lawyer who worked on DEP permits. I worked on these issues at DEP with “transition rules” for the DEP C1 stream buffer rules and in the Highlands Act, where we made the Act retroactive.

The fact that Murphy DEP Commissioner LaTourette has announced the pending rules, has not enacted any kind of moratorium, and tolerated such delay in adopting new rules illustrates his extreme incompetence (or the fact that he’s not serious).

Compounding this incompetence is the embarrassing fact that DEP was forced to re-adopt existing rules – wetlands and flood hazard rules – without changes needed to address climate impacts. Those rules would have expired without such a re-adoption and that just shows how bad the long delays in DEP climate PACT rules were.

Specifically, the DEP re-adopted without change the Flood Hazard Area rules on August 2, 2021.

DEP delineated the flood hazard area for the Chesterfield project in April 2021.

The DEP then re-adopted the wetlands rules without change on May 16, 2022.

That readopting enabled the Chesterfield warehouse developer to quickly submit permit applications to DEP on June 17, 2022 in a blatant abuse to come in under the old wetlands and flood hazard area rules and delineations.

There are probably hundreds of permit applications that have been rushed through DEP in advance of the upcoming and long delayed climate PACT rules.

The fact that LaTourette then decided to remedy this “gold rush” problem by proposing “emergency rules” is either more evidence of his incompetence, or proof that the Murphy administration is not serious about tackling the climate emergency – or worse, even intentionally sabotaging their own stated policies, see:

The Chesterfield warehouse perfectly illustrates this problem.

How may more are there like that? (and not only warehouses, but, as I’ve written, major sources of greenhouse gas emissions).

Why is DEP getting no media scrutiny or criticism by environmental groups for these egregious abuses?

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