Governor Christie Releases New Energy Master Plan for New Jersey

Today, Governor Chris Christie unveiled the long-awaited draft Energy Master Plan for New Jersey (all 141 pages of it).  According to the Governor’s statement:

Governor Chris Christie today released the State’s draft 2011 Energy Master Plan (EMP), a greener and more affordable vision for the use, management, and development of energy in New Jersey over the next decade and beyond. The draft EMP establishes a path for the Administration to manage energy in a way that promotes renewable sources of energy, saves money, stimulates the economy and job creation, and protects the environment. 

“This plan represents my Administration’s commitment to changing the way we produce, distribute and use energy as part of a broader emphasis on renewable sources of energy and economic growth,” said Governor Chris Christie. “The EMP supports the development of new energy-related technologies such as fuel cells, off shore wind, and alternatively fueled vehicles while encouraging the developers, providers and support businesses related to these technologies, to locate here in New Jersey.”

Governor Christie continued, “Furthermore, considering our state has some of the highest energy rates in the nation, reducing these rates and making them comparable to costs in other regions and states are important steps in facilitating economic growth and lowering the cost of living for New Jerseyans.”

“This plan supports enhanced reliability, lower energy costs and environmental protection in New Jersey,” said Lee A. Solomon, President of the New Jersey Board of Public Utilities. “It balances the needs of ratepayers with the State’s policy goals of promoting the state’s economic well being while safeguarding its air, water and land.”

The plan encompasses five overarching goals which work to drive down the cost of energy for all customers while promoting clean, environmentally safe renewable sources of energy:

Promoting a Diverse Portfolio of New, Clean, In-State Generation

• Expanding electricity generation resources to improve reliability and to lower costs, consistent with protecting the environment and growing the economy.  Renewable energy resources, distributed generation, and clean conventional generation projects can help New Jersey flourish while protecting the environment.
• Constructing new generation and improving Pennsylvania-New Jersey-Maryland Interconnection, LLC. (PJM) rules and processes;
• Assessing the implications of lost nuclear capacity;
• Expanding Distributed Generation (DG) and Combined Heat and Power (CHP);
• Supporting behind-the-meter renewables;
• Promoting effective use of biomass and waste-to-energy; and
• Promoting the safe expansion of the interstate natural gas pipeline system. 

Creating a Realistic Path to Achieving a Renewable Energy Portfolio Standard of 22.5% by 2021

• New Jersey is committed to meeting the targets for renewable energy production which is an important part of the state’s long-term strategy. 
• Building upon the Christie Administration’s commitment to solar energy for both economic and environmental benefits;
• Expanding implementation of commercial and industrial solar projects;
• Promoting the development of large solar generation projects on brownfield sites and landfills to offset the costs to cap or remediate these sites;
• Promoting development of solar to assist local governments reduce energy costs; and
• Maintaining support for offshore wind by codifying the statutory requirements of the Offshore Wind Economic Development Act (OWEDA). This provides a framework for setting offshore wind renewable energy certificate (OREC) prices and for approving applications to facilitate the financing of offshore wind projects; and
• Saying no to new coal-fired generation in New Jersey.

Rewarding Energy Efficiency, Energy Conservation and Cost Effective Renewable Resources

• New Jersey’s electric ratepayers pay the fourth-highest retail rates in the United States. Focusing on energy efficiency and conservation will help lower costs while promoting environmentally sound energy use at the same time. New Jersey’s array of energy efficiency and conservation programs and CHP programs are a cost-effective way to reduce energy costs and carbon emissions.
• Reducing peak demand and lowering capacity costs;
• Promoting energy efficiency and demand reduction in State buildings;
• Incorporating aggressive energy efficiency in building codes;
• Redesigning the delivery of State energy efficiency programs;
• Monitoring PJM’s Demand Response Initiatives;
• Improving natural gas energy efficiency; and
• Expanding energy conservation education and outreach to assist consumers in reducing usage.

Capitalizing on Emerging Technologies for Transportation and Power Production

• Support the Development of Innovative Energy Technologies. New Jersey has many options to develop new, clean, cost-effective sources of electricity, utilize fuels more efficiently, and decrease reliance on gasoline and diesel fuel as the primary transportation fuels. Not only will new energy technologies reduce emissions of air pollutants and greenhouse gases, but active support of innovative energy technologies will help create jobs and business development across the state. 
  • Improving transportation efficiency;
  • Reducing carbon emissions and pollutants;
  • Using fuel cell technology;
  • Using energy storage technologies;
  • Assessing smart grid demonstrations; and
  • Considering Dynamic Pricing and Smart Metering.

Encouraging Economic Development and Job Growth

• This plan aims to develop and manage energy in a manner that saves money, stimulates the economy and creates high-quality renewable energy industry jobs. 
  • Supporting the development of new energy-related technologies such as fuel cells, offshore wind, and alternatively fueled vehicles;
  • Reducing the cost of energy for all ratepayers (individuals and businesses);
  • Encouraging energy efficiency at all levels (from homeowner to businesses and state government) thus reducing overall energy demand and helping to reduce costs; and
  • Facilitating the development of new and innovative businesses that will provide and support the next generation of energy technologies and related businesses through the New Jersey Business Incubator Network.

The BPU will continue to serve as the lead implementing agency for the Energy Master Plan and will hold three public hearings on the draft EMP. In doing so, the BPU will coordinate with appropriate state agencies, energy providers and other stakeholders; track and report on progress through annual reporting to the Governor and posts to the BPU and EMP websites; and work with the legislature to develop or modify existing and future programs that support these energy goals.

In April 2010, Governor Christie directed the New Jersey Board of Public Utilities to revisit the EMP in light of economic conditions. The process included internal BPU Task Force Meetings, Stakeholder meetings around the state on various issues related to the plan, and extensive consultations with Rutgers University’s Edward J. Bloustein School of Planning and Public Policy, Center for Energy, Economic, and Environmental Policy.

A full copy of the State’s 2011 Draft Energy Master Plan can be found here: http://nj.gov/emp/

Christie Administration Announces Opening of Application Process for Offshore Wind Projects in New Jersey Waters

In a statement released on Monday, May 16, the Christie Administration reiterated its commitment to “moving New Jersey forward with an economic and environmental agenda that promotes clean and renewable energy.”  Governor Chris Christie announced the opening of the Board of Public Utilities application process for prospective developers of offshore wind projects to be located in New Jersey waters.  This differs from the recent call for nominations for leases through the U.S. Department of Interior, as the project areas are different.

The announcement marks another first in the advancement of offshore wind power in the Garden State.  Governor Christie said, “The wind power movement is providing us with a unique opportunity to advance energy as industry. By doing so, we have the ability to leverage our tremendous resources with ground-breaking technologies, allowing New Jersey to increase its use of renewable energy sources while advancing an industry that will lead to long term job creation.”

To ensure New Jersey’s energy future and strengthen the state’s economy, Governor Christie has worked closely with federal agencies to speed implementation of 1,000 MW of wind turbines; joined with the federal government and fellow East Coast states to establish the Offshore Wind Consortium to promote commercial wind development on the Outer Continental Shelf of the East Coast; and has provided “areas of interest” to the U.S. Department of the Interior which this week issued a “call for nominations” for wind project leases off the Jersey coast, which could lead to construction of wind farms that would make New Jersey a leader in offshore wind energy.

In addition, the Offshore Wind Economic Development Act signed by Governor Christie last year provides financial incentives and tax credits to businesses that construct manufacturing, assembly and water access facilities that support qualified offshore wind projects.  It also authorized creation of an Offshore Wind Renewable Energy Certificate (“OREC”) program and rules that developers must follow to obtain BPU approval, and to receive ORECs. Under these rules, developers are required to submit an application during the application cycle. Once an application is submitted, BPU staff will certify the completeness of the application, at which time the 180 day period to review the application will begin.

Other application information to be submitted for consideration includes: a detailed description of the project, construction plans, financing methods and analysis; proposed OREC pricing methods; a cost-benefit analysis; and operations, maintenance and safety plans. The cost-benefit analysis must demonstrate positive economic and environmental net benefits to the State.

An applicant’s cost-benefit analysis must provide three types of information:

1. An analysis of the potential impacts upon electricity rates of residential and industrial customers, over the life of the project.
2. Impacts on income, employment, wages, indirect business taxes, and output, with a particular emphasis on in-state manufacturing employment; and
3. Net environmental effects of the project.

Applicants must also demonstrate financial integrity and sufficient access to capital to allow for a reasonable expectation of project completion.

The application window, approved this afternoon by the New Jersey Board of Public Utilities (BPU), begins May 16 and closes on June 14, 2011. 

For a link to the press release from the Governor’s Office, click here.

Bills Mandating Public Charging Stations On Toll Roads, In New Shopping Center Developments, Advancing in Legislature

Two bills to promote the development of public charging stations for electric vehicles are advancing in the legislature.  One bill, S2603, requires the Department of Transportation to install charging stations along toll roads such as the New Jersey Turnpike, Garden State Parkway and Atlantic City Expressway.  The bill does provide for recouping cost of delivery from motorists, but no fiscal analysis appears to be publicly available, either for potential charges to motorists or to the ultimate cost of development and installation of the charging stations, although the article cited below does provide some estimated costs.   

According to the bill, “The authority shall determine, in consultation with the Board [of Public Utilities] the costs to the authority associated with the installation of, and provision of electricity through, the electric vehicle charging stations, and shall recover such costs from motorists who use the stations, in proportion to their use.”

A second bill, A3647, requires developers of new shopping centers which contain 100 or more parking spaces to install charging stations in a minimum of five (5) percent of the parking spaces as part of the development.   The Assembly Appropriations Committee Statement addresses recovery of costs as follows:  “The bill directs the Board of Public Utilities to set the maximum price the charging station owners may charge, and the Division of Taxation will promulgate regulations to enforce that limitation and will enforce rules concerning the posting of prices by shopping center owners. Note that this regulatory scheme is similar to the Division of Taxation regulation of the retail sale of motor fuels pursuant to N.J.S.A.56:6-1 et seq.”   

The Star Ledger reports today on the progress of both bills:

Electric vehicles get only so much mileage out of a full battery charge, and motorists can’t depend on the same outlets that power their cell phones or laptops. All that raises the question of public charging stations, which New Jersey legislators have been considering as a new lineup of hybrids and all-electric models heads to dealerships.

“The biggest issue with electric vehicles is clearly the range-anxiety problem,” said Jesse Toprak, an auto industry analyst at TrueCar.com. “Either the battery range needs to get longer, or you need to have a good network of charging stations that is practical and easily accessible.”

One bill to set up charging stations along New Jersey’s toll highways cleared a Senate committee 3-2 Monday.

Legislators and environmentalists said public charging stations are key to cutting pollution, reducing U.S. foreign-oil dependency, and stimulating electric car sales. The stations would be built on parking lots in all but one of the service areas on the New Jersey Turnpike, the Garden State Parkway and the Atlantic City Expressway.

“There are very large numbers (of cars) being produced obviously with the expectation that they’re going to be bought, so we need to be prepared,” said Sen. Linda Greenstein (D-Middlesex), the bill sponsor.

Transit officials estimated each station would cost more than $5,000 to build, and while they supported the idea behind the bill, they raised concerns about investing up-front and recovering costs from drivers, as the bill currently stipulates.

Greenstein told the Environment and Energy Committee she is looking for other ways to fund the project, and legislators urged her to seek federal funds or private investment. She hopes to bring the finished bill (S2603) to the Senate floor within months.

Assembly Majority Leader Joseph Cryan (D-Union), who is sponsoring the bill in his chamber, said an amendment currently in the works would lower the required number of charging stations per service area, which would drive costs down. He also said the price per station comes down to $1,250 with a federal tax credit.

“After tax credits, it’s extremely manageable,” he said.

Another bill pending in the Assembly (A3647) would require any new shopping centers to provide the same kind of charging stations in their parking lots. Under that bill, the Board of Public Utilities would set pricing standards for the shopping centers.

At the Senate committee hearing, environmentalists praised Greenstein’s bill and encouraged transit authorities to pay for it. Jeff Tittel of the Sierra Club said at least 10 all-electric and 10 hybrid models are coming out in the next two years.

“The Turnpike Authority is widening roads, they have plenty of money for that, but they should have some money for green technology as well,” he said. “The cars are coming. We need to get that infrastructure moving.” //

 To view S2603, click here.

To view A3647, click here.

NJBPU Halts Solar Rebate Program Until September

Updated 5-12-10:  NJ.com has provided more information about the phasing of rebates for solar installation.  See http://www.nj.com/news/index.ssf/2010/05/nj_halts_accepting_new_solar_p.html

The New Jersey Board of Public Utilities has confirmed that it stopped accepting new applications for its solar rebate program and will not take new applications until September 1 as funding for the rebate program is currently depleted.

According to a Star Ledger report:

On April 1, the BPR stopped taking applications because the money allotted through April 30 had been used up.

When applications began being accepted again on May 3, some people were camping out to turn theirs in early. That day, more than 1,100 applications were submitted. Since then, another 125 have rolled in.

So the BPU decided today to cut off new requests again until Sept. 1.

Solar Panels Do Not Constitute Impervious Cover Under New Law

 On Thursday, legislation designed to make it easier for both homeowners and businesses to install clean-energy producing solar panels was signed into law by Governor Chris Christie.  Specifically, S-921 amends a number of laws, including the the Municipal Land Use Law, Highland Act, Pinelands Act, and legislation relating to various NJDEP approvals, including coastal development permits, to exempt solar panels from being considered as “impervious cover” or “impervious surface.”  This legislative change is significant as local zoning laws typically set maximum impervious surface or coverage percentages and municipal and state agencies have been inconsistent in determining whether solar panels should constitute an impervious surface. 

According to a release from two of the primary sponsors, Senator Bob Smith (D-Middlesex, Somerset) and Senator James Beach (D-Camden):

Currently, there are numerous state laws and regulations that prohibit what is known as “impervious cover” or “impervious surface” from covering large expanses of a given property. Impervious surfaces or cover can be anything such as driveways, homes, pavement or any other cover that prevents water from being absorbed into the ground, thereby preventing aquifers from being replenished and causing run-off, soil erosion, flooding and other environmental hazards.

The new law (S-921) will exempt solar panels from being considered “impervious cover” because they are elevated panels that do not completely cap the ground and prevent water absorption. The exemption will allow for the development of solar panels in various protected areas where they are currently prohibited such as the Pinelands, the Highlands, coastal and waterfront areas, and other areas protected by the Municipal Land Use Law.

Following the bill signing, Governor Chris Christie commented on the new law: “There is a balance to be struck between responsible land-use law and well-intended but burdensome restrictions that do more harm than good,” Governor Christie said. “This legislation removes the regulatory burden, serves our environment by expanding renewable energy assets and serves the economy by creating demand for solar panel production.” 

Other Republicans also eagerly supported the legislation:

“Most people don’t realize that New Jersey is one of the largest and fastest growing solar energy producers in the country,” said primary sponsor State Senator Jennifer Beck (R-Monmouth). “While there is a growing demand from homeowners, farmers and the business community to install solar panels on their properties, many have found a patchwork of conflicting laws and regulations that have prevented clean energy installations. This legislation removes a major obstacle that has prevented our state’s growth in solar energy.”

Municipalities and environmental regulators have been inconsistent in their determination of how ground-level solar panel arrays should be considered for zoning purposes and compliance with environmental regulations, with some designating the structures as impervious surfaces. This designation has prevented some proposed solar energy installations from being built.  The legislation, S-921, specifically exempts solar panel installations from being considered an impervious surface cover.

“This legislation will ensure that solar panels are considered in a uniform manner for zoning and environmental purposes, which will eliminate confusion and speed the adoption of clean energy in New Jersey,” said Assemblyman Declan O’Scanlon (R-Monmouth), a co-sponsor of the legislation.

“There’s no reason the Garden State cannot become the biggest producer of clean solar energy in the nation,” added Assemblywoman Caroline Casagrande (R-Monmouth).

In addition to signing this legislation on Earth Day, Governor Christie has been promoting his energy policy all week, as noted in a release from the Governor’s Office regarding a recent Board of Public Utilities conference on sustainability.  For the release, click HERE.

NJ Senate Votes To Reduce Restrictions on Land-Based Wind Turbines in AC

Star Ledger File Photo

The New Jersey State Senate voted on Monday, February 22 in favor of S-212, which allows an exception to New Jersey Department of Environmental Protection (“DEP”) regulations prohibiting the placement of wind turbines within 500 feet of a mean water line, provided it is constructed in a municipality “in which casino gaming is authorized” (i.e., Atlantic City).

According to the Star Ledger report: 

Current DEP restrictions prohibit wind turbines within 500 feet of a mean high water line, but a bill the Senate approved today would roll back that rule for Atlantic City.   The bill, which the Senate passed 39-0, would allow turbines to be built on a city pier in the 12 months after the law was enacted. 

“If we expect to maintain our place as a leader in renewable energy, this project will be key to helping New Jersey explore new locations for wind-powered sources” said Sen. Jim Whelan (D-Atlantic), the bill’s sponsor. “The Steel Pier in Atlantic City is an ideal test site for what will hopefully be other future projects of this kind along New Jersey’s coast.” 

The bill must be approved by the Assembly and signed by the governor before it becomes law.

Solar Legislation Expected to Increase Investment in New Jersey

By Governor James J. Florio & Glenn J. Williams, Esq.

New Jersey continues to forge ahead in its quest for clean renewable energy. With the passage of each new law, New Jersey enhances critical elements of its financial incentive infrastructure and regulatory landscape in order to remain well positioned to attract private and public investments in solar energy. Success, however, requires one to navigate an evolving labyrinth of state and federal regulations which are often influenced by countervailing political and economic forces. 

In New Jersey, the current renewable energy regulation regime has roots in the Electric Discount and Energy Competition Act of 1999, which directed the Board of Public Utilities (BPU) to establish Renewable Portfolio Standards for the State. The standards set by the BPU as outlined in the current Energy Master Plan adopted in 2008 call for 30% of the State’s electricity to be generated from renewable sources by 2020, of which 2.12% is to be from solar power, commonly known as the “Solar Carve-Out.”New Jersey’s SACP penalty rates were set at $711 per megawatt hour in 2008-2009 and were scheduled to decrease yearly to $594 per megawatt by 2015-2016. The current SACP amount is $693.

In theory, because solar energy producers price their SRECs at rates lower than the penalty payments imposed upon suppliers, suppliers purchase them to save money while helping the State meet its goals for a cleaner environment. However, a flaw in the financial structure was exposed. In reality, the time horizon established by the SREC / SACP structure has proven to be insufficient to generate significant investor confidence in developing solar projects in New Jersey. Recent legislation has addressed flaws in the financial incentive infrastructure and has further laid the groundwork for new solar project developments in New Jersey.

A3520 – Solar Energy Advancement and Fair Competition Act
On his last day in office, January 18, 2010, Governor Corzine signed into law A3520, the “Solar Energy Advancement and Fair Competition Act” which addresses the SREC / SACP financial infrastructure shortfall by establishing a greater demand for solar energy and extending timelines which should boost investor confidence in developing the solar energy supply in this State.

Renewable energy regulation at the federal level dates back to 1978, when amidst rising concerns about the environment and rising costs of oil, Congress passed the Public Utility Regulatory Policies Act, or PURPA, to encourage the development of alternative energy sources. Federal regulations issued pursuant to PURPA require electric utilities to purchase renewable energy from “qualified facilities” producing it.

Suppliers of electrical power in New Jersey can meet their obligations by purchasing electricity produced by a renewable energy generator directly via a Power Purchase Agreement, and/or indirectly, in the case of solar power, by purchasing Solar Renewable Energy Certificates, or SRECs; both of which provide a key financial engine for renewable energy infrastructure development. The financial terms of a Power Purchase Agreement generally bear a direct relationship to the costs and financial incentives necessary to attract investors to develop a renewable energy power project. An SREC is a certificate earned by the generator of solar power for each megawatt of power produced. SRECs are tradable and are often used as the basis of project financing. For example, a number of electric suppliers have agreed to finance solar project developments in New Jersey by extending loans that are repaid using SRECs, such as PSE&G’s Solar For All program.

The market value of an SREC is determined by the carrot and stick approach established by the New Jersey Legislature. An electric supplier can comply with its obligations under the Renewable Energy Standards by, for example, use of Power Purchase Agreements and/or by purchasing SRECs. However, if the supplier fails to meet Renewable Portfolio Standard goals, it is required to pay the State a penalty in the form of a Solar Alternative Compliance Payment, or SACP. Requiring suppliers to either purchase clean energy or make penalty payments establishes a market for SRECs.

The Solar Energy Advancement and Fair Competition Act directs the BPU to adopt enhanced Renewable Energy Standards which require electric suppliers to purchase power from solar generators on a 15-year schedule, from Energy Year 2011 to 2026. The law also requires the suppliers to collectively purchase at least 195 Gigawatt hours (GWh) of electrical power from solar generators in 2010, increasing incrementally to 6,085 GWhs by 2026; hence a greater defined demand for solar power was created.

It also directs the BPU to establish a corresponding 15-year schedule for the SACP, i.e. penalty payments, for failure to comply, essentially therefore extending the market value and timeline of the SREC. If the supply of solar power available in the market via Power Purchase Agreements and/or SRECs is insufficient for electric suppliers to meet their collective obligations, then the balance of that obligation must be paid at the SACP penalty rate; hence a greater incentive to develop the solar energy supply was created. And, by lifting the previous 2 megawatt cap on net metering systems, the law provides more opportunities to construct larger facilities to meet that demand.

The law clearly attempts to prevent any reduction in either the Renewable Portfolio Standards or the SACP penalty payment schedule, and encourages the BPU to periodically consider increasing the required solar energy component of the Renewable Portfolio Standards. Additionally, the law contains an escalation clause in which the schedule set forth in the Standards is to increase by 20% in the event that : (1) the number of SRECs generated meets or exceeds the demand for 3 consecutive reporting years, starting in 2013; and (2) the average SREC price for all SRECs purchased by entities with Renewable Portfolio Standards obligations decreases in the same 3 consecutive reporting years. There are a number of limits and exemptions to this clause, but its capacity to encourage investor confidence in solar energy projects is clear.

A4341 – Authorizes increased grant funding to local governments for site remediation for redevelopment of contaminated property for renewable energy projects
This law, enacted on January 17, 2010, authorizes matching grants of up to $5 million per year from the Hazardous Discharge Site Remediation Fund to municipalities, counties or certain redevelopment agencies for up to 75% of the cost of remediating contaminated property for renewable energy generation. In so doing, it expands the current law authorizing such grants for projects involving the redevelopment of property for recreation, conservation, or affordable housing to include the redevelopment of contaminated property for renewable energy generation.

S1538 – Concerns biomass, solar, and wind energy generation on farms
On January 16, 2010, S1538 was signed into law. It permits the owner of preserved farmland in the State to construct, install and operate biomass, solar, or wind energy generation facilities on the farm, provided that the equipment does not interfere significantly with the agricultural use of the land, is owned by the landowner, and is used to provide power or heat to the farm. The law also allows a person who owns preserved farmland to obtain a permit to allow a third party to construct, install, and operate solar or wind energy facilities and equipment on the farm. Despite New Jersey being a densely populated state, it is a leader in farmland preservation, with more than 160,000 acres or 18% of its farmland preserved. This law presents additional opportunities for the installation of alternative energy systems on such land.

A3218 – Creates Solar and Wind Energy Commission
The purpose of this bill, signed into law on January 16, 2010, is to determine where solar and wind energy installations would be feasible on State-owned property. It requires the Solar and Wind Energy Commission to make recommendations and research the financial implications of installing and maintaining solar or wind facilities, as well as the projected savings to the State and include a discussion of the potential use of net metering. The study shall include a discussion of property values, land use, community impact, planning and development, and environmental factors related to the State owned property sites where solar or wind energy installations are feasible.

* * * * *
Florio Perrucci Steinhardt & Fader, L.L.C. is at the forefront of energy policy, both nationally and within the State of New Jersey. The Energy practice is headed by former Governor James J. Florio, who has served as a senior member of the Committee on Energy and Commerce while a member of the United States House of Representatives. Governor Florio also took the groundbreaking step of creating the Department of Environmental Protection and Energy, which, for the first time, focused New Jersey public policy on the creation of a renewable, sustainable, and environmentally sensitive energy supply. Governor Florio also served on the U.S. Secretary of Energy’s Advisory Board under the Clinton Administration.

Florio Perrucci Steinhardt & Fader, L.L.C. provides comprehensive government affairs and general counsel services to major New Jersey utility companies, renewable energy developers and companies looking to successfully navigate state and federal energy regulation.

For more information as to how these policy developments will impact your business or to assist you with implementation, feel free to contact Governor James J. Florio or Glenn J. Williams in our Phillipsburg Office at 908-454-8300.

Outgoing Governor Signs Laws Extending Development Permits, Allowing Small Wind Power Facilities; Vetoes Extension of Time to Comply with Water Quality Protection Rules

With hours left in his term in office on Tuesday, former Governor Jon Corzine signed into law a further extension of certain development permits in New Jersey (S-3137/A-4347).  The former Governor also failed to take action on (i.e., “pocket vetoed”) an extension of the implementation of new water quality protection rules (S-2985/A-4345) which had passed both houses.  Additionally, a few days earlier, the former Governor signed into law a bill which regulates the development of small wind energy systems (S-2528/A-3740).  All three bills were previously identified as key bills for monitoring by local governments by the New Jersey State League of Municipalities.  The League had supported S-2985, opposed S-2528 and was “monitoring” S-3137.

According to the Star Ledger:

The law extends the Permit Extension Act of 2008, which originally froze the expiration clock on development permits that otherwise would have expired after Jan. 1, 2007. The clock on those permits was not to begin ticking again until July 1, 2010, with the hope of the permits would be revived when the economy improved, instantly sparking commercial and housing construction and new jobs.  But with the recovery yet to arrive, the new law will keep the permit expirations frozen until July 2012.

. . . .

Corzine, however, simultaneously gave environmentalists a victory by vetoing a second bill designed to delay new water protection rules.

“Those rules were 15 years in the making. … This extension vetoed by the governor would only have led to a continued depletion of our natural resources,” said Assemblyman John McKeon, D-Essex, who chairs the Assembly Environment and Solid Waste Committee.

The rules, initially adopted in 2008, give the state Department of Environmental Protection new authority to restrict development that will rely on new septic systems or extending sewer lines into environmentally sensitive areas, wetlands and rare species habitats. Enactment already was delayed by the DEP until this April to allow the state’s 21 counties to update their wastewater management plans showing the potential growth of business and housing in their areas – and the types of wastewater systems they will need.  The vetoed bill would have delayed enactment of the rules until April 2011. The federal Environmental Protection Agency, which gave $1.6 million to help draft the new county plans, opposed the extension, contending the rules were drafted in response to federal Clean Water Act regulations and that New Jersey has failed to comply with orders issued 15 years ago to comply with federal water standards.

While the wastewater plan extension failed to receive former Governor Corzine’s support, it will be worth monitoring this bill to see if it progressess in the 2010-2011 Legislative session and whether Governor Chris Christie will support such an extension.

For a copy of the law relating to permit extensions, click here.

For a copy of the bill relating to extension of wastewater plans, click here.

For a copy of the law relating to small energy wind systems, click here.

League Identifies Land Use Bills Which May Move In Lame Duck Session

The New Jersey State League of Municipalities (the “League”) has identified three bills that impact land use that may be considered by the Legislature in “lame-duck” session when it reconvenes on January 4, 2010.  (As always, the editorial comments of the League do not necessarily reflect this author’s opinion.)

The League has highlighted the following bills:

Extension of Wastewater Management Quality Plans

S-2985, which the League supports, extends for three years, until April 7, 2012, the period of time allowed to wastewater management planning agencies to prepare and submit a wastewater management plan or a wastewater management update to the Department of Environmental Protection.    The bill further maintains the validity of wastewater service areas and sewer service areas during the extension.   S-2985 was amended and approved by the Senate Economic Growth Committee on December 14.     It is poised for a vote by the full Senate is January.   Companion legislation may also move in the Assembly in January.

Extension of Permits

S-3137, which the League is currently monitoring, amends the “Permit Extension Act of 2008” so that approvals extended by the original act to July 1, 2010 will again be extended to December 31, 2012.    S-3137 was approved by the Senate Economic Growth Committee on December and may be approved by the full Senate in January.   Companion legislation may also move in the Assembly in January.

Wind Power Bill Infringes on Local Zoning

The League opposes S-2528, which prohibits municipalities from adopting ordinances or resolutions regarding the installation and operation of small wind energy systems that “unreasonably” limit such installations or unreasonably hinder the performance of such installations.”  

Like the recent bill defining inherently beneficial uses, this legislation unnecessarily infringes on local zoning discretion. Obviously, the promotion of alternate energy sources, such as wind and solar, benefits all our residents and should be encouraged.   But such encouragement should not conflict with local discretion, and the ability of local land use boards and governing bodies, to protect the interests of taxpayers.  

S-2528 was approved by the Senate Budget Appropriations and will likely be scheduled for a full Senate vote in January.   We recommend that you contact your State Senator and ask them to oppose S-2528. 

Further, the Assembly companion legislation, A-3740, is assigned to the Assembly Housing and Local Government Committee and may be scheduled for a hearing in January.  We also recommend contacting the Committee and your Assembly representatives and ask them to oppose A-3740. 

For the full text of the League alert, click here.

Bill Defining “Inherently Beneficial Use” Now Law

On November 20, 2009, Governor Corzine signed S-1303/A-3062 into law. The new law amends the definitions section of the Municipal Land Use Law (“MLUL”) to define “inherently beneficial uses” and “wind, solar, and photovoltaic energy facilities or structures.”  See N.J.S.A. 40:55D-4.   The new law defines an inherently beneficial use as one that is “universally considered of value to the community” in that by its very nature, it “fundamentally serves the public good and promotes the general welfare.” The definition includes a non-exhaustive list of examples of such uses, such as hospitals, schools, child care centers, groups homes, and wind, solar or photovoltaic energy facilities or structures.   “Wind, solar, or photovoltaic energy or facility or structure” is defined as “a facility or structure whose purpose is to supply electric energy generated from wind, solar or photovoltaic technologies, regardless of whether it is a principal use, part of a principal use, or accessory use or structure.”

The law was passed over the objections of the New Jersey State League of Municipalities (the “League”) as well as the objections of several municipalities who opposed the bill through municipal resolutions. 

According to the League:

Prior to this bill, the courts treated inherently beneficial uses on a case-by-case basis. Although a use such as a brain trauma center would undoubtedly be considered inherently beneficial if the center was the only one of its kind in the area, the courts made clear that in a community saturated with such facilities, the use might no longer qualify as inherently beneficial. The MLUL amendment effectuated through this bill, however, removes that distinction, making the listed uses inherently beneficial regardless of how many may already exist within the community. In addition, by adding wind, solar and photovoltaic facilities to the list, the new law anticipates further legal developments, as the status of such uses has yet to be addressed by the courts.  

It should also be noted that by using the term “includes, but is not limited to” in the definition of inherently beneficial use, the bill makes clear that other uses could also qualify as inherently beneficial uses, even though not specifically enumerated in the definition (e.g. houses of worship and affordable housing).

Conversely, for land owners who believe they have been stymied by municipal action or inaction designed to thwart reasonable development of their property, this new definition of “inherently beneficial use” may provide the legal support needed to construct facilities such as solar farms or group homes on land which a municipality has “defensively” zoned. 

For the full text of the new law, click here.

For an article on the Jumilla, Spain solar farm (pictured above), the largest solar farm in the world, which encompasses approximately 247 acres and is expected to produce enough electricity to power 20,000 homes, click here.