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Builders can see waivers to DEP regulations as new rule takes effect

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A rule allowing the Department of Environmental Protection to consider regulatory waivers went into effect today, as the state Senate has not yet advanced a resolution to block it.

"Too many times we've heard of conflicting regulations — not just in the DEP, but in other agencies — which stifles economic development and creating jobs and getting the economy moving," said Michael Egenton, senior vice president of the New Jersey Chamber of Commerce. "This rule gives flexibility to the DEP as it's looking at various projects, and it will help them get through the regulatory maze in bureaucracy."

Under the waiver rule, the DEP can consider exempting waiver applicants from its 124 existing programs and regulations in case of a public emergency or if a provision creates undue hardship, conflicts with other state or federal rules, or generates a net environmental benefit. Exemptions to the rule include provisions involving the air emissions trading program, providing hunting or fishing licenses, protecting human health and designating endangered species habitats.

Environmental groups have strongly opposed the rule since the DEP first proposed it in March 2011, and one group has vowed to legally challenge any waivers issued.

"Many of the department rules that could be waived already have waiver provisions written into the regulations. Adding more waivers is going to create loopholes big enough for bulldozers," said Jeff Tittel, director of the state chapter of the Sierra Club, in a statement. "This rule is going to create a bigger slowdown in environmental permitting, as all applicants will want a waiver — and will sue the DEP when they do not receive one."

But Egenton said naysayers should give the rule a chance before criticizing it, pointing to the licensed site remediation professional program, which did not face legislative hearings until after it took effect in 2009.

"How can anyone be overly critical of a rule that hasn't even been implemented yet?" Egenton said. "No one can argue on any side against something that creates economic opportunities and business expansion and creates jobs."

In May, the Assembly passed an oversight resolution to block the waiver rule, declaring it violated legislative intent, but the measure has stalled in the Senate. The Legislature can still pass a resolution after the DEP starts accepting waivers, as it did with LSRP.

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