New Jersey-2010-A960-Introduced

An Act concerning the expediting of certain State permits in smart growth areas, and amending the title of and amending and supplementing P.L.2004, c.89.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. The title of P.L.2004, c.89 (C.52:27D-10.2 et al.) is amended to read as follows:

An Act concerning implementation of the State Development and Redevelopment Plan, establishing a Smart Growth Ombudsman in the Department of Community Affairs, establishing a Division of Smart Growth in the Department of Environmental Protection [,] and a Division of Smart Growth in the Department of Transportation, [and a Division of Smart Growth in the Department of Community Affairs,] providing for the expediting of certain State permits in smart growth areas, supplementing P.L.1978, c.67 (C.52:14F-1 et seq.), and supplementing Titles 13, 27, and 52 of the Revised Statutes.

(cf: P.L.2004, c.89, title)

2. Section 1 of P.L.2004, c.89 (C.52:27D-10.2) is amended to read as follows:

1. As used in sections 2 and 3 of P.L.2004, c.89 (C.52:27D-10.3 and C.52:27D-10.4):

"Applicant" means any person applying for a permit pursuant to sections 5, 7, [9] or 10 of P.L.2004, c.89 (C.13:1D-145, C.27:1E-2, [C.52:27D-10.6] or C.13:1D-146) or section 15 of P.L. , c. (C. ) (pending before the Legislature as this bill) ;

"Environmentally sensitive area" means a category one water designated by the Department of Environmental Protection pursuant to the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.), and any associated buffer area, a coastal wetland as defined pursuant to "The Wetlands Act of 1970," P.L.1970, c.272 (C.13:9A-1 et seq.) that is greater than one acre in size, a freshwater wetland as defined pursuant to the "Freshwater Wetlands Protection Act," P.L.1987, c.156 (C.13:9B-1 et seq.) that is greater than one acre in size, or a site included on the National Register of Historic Places or the New Jersey Register of Historic Places;

"Ombudsman" or "Smart Growth Ombudsman" means the Smart Growth Ombudsman appointed by the Governor pursuant to section 2 of P.L.2004, c.89 (C.52:27D-10.3);

"Permit" means :

(a) any permit or approval issued by the Department of Environmental Protection, pursuant to any law, or any rule or regulation adopted pursuant thereto, provided that "permit" shall not include (1) any approval of a grant or loan , or [a] (2) any permit or approval issued pursuant to the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.), the "Pesticide Control Act of 1971," P.L.1971, c.176 (C.13:1F-1 et seq.), the "Industrial Site Recovery Act," P.L.1983, c.330 (C.13:1K-6 et al.), the "Toxic Catastrophe Prevention Act," P.L.1985, c.403 (C.13:1K-19 et seq.), the "Coastal Area Facility Review Act," P.L.1973, c.185 (C.13:19-1 et seq.), the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.), [the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.), or] the "Radiation Protection Act," P.L.1958, c.116 (C.26:2D-1 et seq.), [any permit or approval issued by the Department of Transportation pursuant to any law, or any rule or regulation adopted pursuant thereto or any permit or approval required as a condition of development or redevelopment issued by the Department of Community Affairs pursuant to any law or any rule or regulation adopted pursuant thereto] the "Solid Waste Utility Control Act," P.L.1970, c.40 (C.48:13A-1 et seq.), the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.), the "Brownfield and Contaminated Site Remediation Act," P.L.1997, c.278 (C.58:10B-1.1 et al.), or the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.); or

(b) (1) an access permit issued by the Commissioner of Transportation pursuant to the "State Highway Access Management Code," N.J.A.C.16:47-1.1 et seq., as authorized pursuant to sections 4 and 5 of P.L.1989, c.32 (C.27:7-92 and C.27:7-93), (2) a highway occupancy permit issued by the Commissioner of Transportation pursuant to chapter 41 of Title 16 of the New Jersey Administrative Code (N.J.A.C.16:41-1.1 et seq.), as authorized pursuant to P.L.1966, c.301 (C.27:1A-1 et seq.), (3) an aeronautical facility license issued by the Commissioner of Transportation pursuant to chapter 54 of Title 16 of the New Jersey Administrative Code (N.J.A.C.16:54-1.1 et seq.), as authorized pursuant to P.L.1953, c.234 (C.6:1-44.1), or (4) a permit for the creation or expansion of a prohibited use or vertical height development within an airport safety zone issued by the Commissioner of Transportation pursuant to subchapter 6 of chapter 62 of Title 16 of the New Jersey Administrative Code (N.J.A.C.16:62-6.1 et seq.), as authorized pursuant to P.L.1983, c.260 (C.6:1-80 et seq.) ;

"Person" means any individual, corporation, company, partnership, firm, association, owner or operator of a treatment works, political subdivision of this State, or State or interstate agency; and

"Smart growth area" means an area designated pursuant to P.L.1985, c.398 (C.52:18A-196 et seq.) as Planning Area 1 (Metropolitan), Planning Area 2 (Suburban), or a designated urban center or regional center [, or a designated growth center in an endorsed plan ; a smart growth area and planning area designated in a master plan adopted by the New Jersey Meadowlands Commission pursuant to subsection (i) of section 6 of P.L.1968, c.404 (C.13:17-6); a growth area designated in the comprehensive management plan prepared and adopted by the Pinelands Commission pursuant to section 7 of the "Pinelands Protection Act," P.L.1979, c.111 (C.13:18A-8); an urban enterprise zone designated pursuant to P.L.1983, c.303 (C.52:27H-60 et seq.) or P.L.2001, c.347 (C.52:27H-66.2 et al.); an area determined to be in need of redevelopment pursuant to sections 5 and 6 of P.L.1992, c.79 (C.40A:12A-5 and 40A:12A-6) and as approved by the Department of Community Affairs; or similar areas designated by the Department of Environmental Protection] within Planning Area 3 (Fringe). "Smart growth area" shall not include those areas of Planning Area 2 in which a municipality with area designated as Planning Area 2 within its boundaries has by ordinance, adopted within one year after the date of enactment of P.L. , c. (C. ) (pending before the Legislature as this bill), declared that proposed projects within its boundaries shall not be eligible for permits pursuant to P.L.2004, c.89 (C.52:27D-10.2 et al.), and provided that such ordinance is duly filed upon adoption with the Smart Growth Ombudsman, the Division of Smart Growth established in the Department of Environmental Protection pursuant to subsection a. of section 5 of P.L.2004, c.89 (C.13:1D-145), and the Division of Smart Growth established in the Department of Transportation pursuant to subsection a. of section 7 of P.L.2004, c.89 (C.27:1E-2). A municipality with areas designated as Planning Area 2 within its boundaries that subsequently wishes to revise such an ordinance, or a municipality that wishes to allow for permits pursuant to P.L.2004, c.89 (C.52:27D-10.2 et al.) within specific portions of those areas designated as Planning Area 2 within its boundaries, shall petition for plan endorsement by the State Planning Commission pursuant to the "State Planning Act," P.L.1985, c.398 (C.52:18A-196 et al.). "Smart growth area" also shall not include any environmentally sensitive area identified by the Department of Environmental Protection pursuant to rules and regulations reviewed by the Smart Growth Ombudsman pursuant to subsection d. of section 3 of P.L.2004, c.89 (C.52:27D-10.4) and adopted in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

(cf: P.L.2004, c.89, s.1)

3. Section 2 of P.L.2004, c.89 (C.52:27D-10.3) is amended to read as follows:

2. a. There is created in the Department of Community Affairs a Smart Growth Ombudsman. The Smart Growth Ombudsman shall be appointed by the Governor, serve at the pleasure of the Governor, and report to the Governor.

b. The activities and duties of the Smart Growth Ombudsman shall be funded out of revenues collected pursuant to the fee schedule adopted pursuant to subsection d. of section 5 [,] and subsection d. of section 7 [and subsection d. of section 9] of P.L.2004, c.89 (C.13:1D-145 [,] and C.27:1E-2 [and C.52:27D-10.6] ) and remitted to the Smart Growth Ombudsman.

c. The Smart Growth Ombudsman may call upon the assistance of the services of those employees of any State, county , or municipal department, board, bureau, commission , or agency as may be required and as may be necessary for its purposes. In addition, the Smart Growth Ombudsman may call upon any department, agency , or office of the State of New Jersey for such documents, materials , and information as it may deem necessary.

(cf: P.L.2004, c.89, s.2)

4. Section 3 of P.L.2004, c.89 (C.52:27D-10.4) is amended to read as follows:

3. The Smart Growth Ombudsman shall:

a. in conjunction with the Directors of the Divisions of Smart Growth established pursuant to sections 5 [,] and 7 [and 9] of P.L.2004, c.89 (C.13:1D-145 [,] and C.27:1E-2 [and C.52:27D-10.6]), review all relevant permit programs and requirements and make recommendations to the Governor and the departments regarding integration of multiple review and approval processes and recommendations on those permits for which approval may be expedited in smart growth areas through mechanisms such as permits-by-rule, general permits , or qualification of professionals;

b. maintain and operate an informational website which shall enable any person to gain access to information regarding the statutory obligations and authority of the Smart Growth Ombudsman, including those services which the ombudsman may provide to State permit applicants to facilitate or expedite permit approval and issuance;

c. at the request of an applicant, participate in the permit application and review process to ensure compliance with the time frames set forth in subsection c. of section 5, subsection c. of section 7 [or subsection c. of section 9], or [subsections] subsection c. [and d.] of section 10, as the case may be, of P.L.2004, c.89 (C.13:1D-145, C.27:1E-2, [C.52:27D-10.6] or C.13:1D-146);

d. review, within 45 days after receipt, any new rules or regulations proposed by [any State agency] the Department of Community Affairs, the Department of Environmental Protection, or the Department of Transportation, and determine whether the proposed rules or regulations, as they pertain to [the] smart growth areas, are consistent with the State Development and Redevelopment Plan. In the event that the Smart Growth Ombudsman determines that the proposed rules or regulations in [the] smart growth areas are not consistent with the State Development and Redevelopment Plan, the Smart Growth Ombudsman shall return ,within 45 days after receipt, the proposed rules or regulations to the [State agency] appropriate department with recommended amendments necessary to make the proposed rules or regulations consistent with the State Development and Redevelopment Plan. [A State agency] The Department of Environmental Protection, the Department of Transportation, and the Department of Community Affairs shall not file proposed new rules or regulations for publication in the New Jersey Register (1) unless and until the Smart Growth Ombudsman determines the proposed rules or regulations in [the] smart growth areas are consistent with the State Development and Redevelopment Plan , or (2) the Smart Growth Ombudsman has not responded to the appropriate agency within the 45-day period. The requirements of this section may be waived upon a written determination by the Chief Counsel to the Governor that the proposed rules or regulations are required to implement a federal or State mandate; and

e. one year after the date of enactment of [this act] P.L.2004, c.89 (C.52:27D-10.2 et al.) and annually thereafter, prepare a report which shall be transmitted to the Governor and the Legislature summarizing the activities of the ombudsman, including, but not limited to, a description of the permits, permit mechanisms, and permit processes that have been streamlined, a list of permit applications in which the ombudsman has participated, any rules or regulations that have been reviewed and the consistency determinations made by the ombudsman, and a report concerning the programs established for the registration and qualification of professionals by the Director of the Division of Smart Growth in the Department of Environmental Protection [,] and in the Department of Transportation [, and the Department of Community Affairs].

[As used in this section, "State agency" shall not include the Pinelands Commission established pursuant to P.L.1979, c.111 (C.13:18A-1 et seq.), the Highlands Water Protection and Planning Council established pursuant to P.L.2004, c.120 (C.13:20-1 et al.), or the New Jersey Meadowlands Commission established pursuant to P.L.1968, c.404 (C.13:17-1 et seq.), or any independent authority or commission.]

(cf: P.L.2004, c.89, s.3)

5. Section 4 of P.L.2004, c.89 (C.13:1D-144) is amended to read as follows:

4. As used in sections 5 and 10 of P.L.2004, c.89 (C.13:1D-145 and C.13:1D-146):

"Applicant" means any person applying for a permit pursuant to sections 5 or 10 of P.L.2004, c.89 (C.13:1D-145 and C.13:1D-146);

"Ombudsman" or "Smart Growth Ombudsman" means the Smart Growth Ombudsman appointed by the Governor pursuant to section 2 of P.L.2004, c.89 (C.52:27D-10.3);

"Permit" means any permit or approval issued by the Department of Environmental Protection pursuant to any law, or any rule or regulation adopted pursuant thereto, provided that "permit" shall not include (a) any approval of a grant or loan , or [a] (b) any permit or approval issued pursuant to the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.), the "Pesticide Control Act of 1971," P.L.1971, c.176 (C.13:1F-1 et seq.), the "Industrial Site Recovery Act," P.L.1983, c.330 (C.13:1K-6 et al.), the "Toxic Catastrophe Prevention Act," P.L.1985, c.403 (C.13:1K-19 et seq.), the "Coastal Area Facility Review Act," P.L.1973, c.185 (C.13:19-1 et seq.), the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.), [the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.), or] the "Radiation Protection Act," P.L.1958, c.116 (C.26:2D-1 et seq.) ,the "Solid Waste Utility Control Act," P.L.1970, c.40 (C.48:13A-1 et seq.), the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.), the "Brownfield and Contaminated Site Remediation Act," P.L.1997, c.278 (C.58:10B-1.1 et al.), or the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.) ;

"Person" means any individual, corporation, company, partnership, firm, association, owner or operator of a treatment works, political subdivision of this State, or State or interstate agency; and

(cf: P.L.2004, c.89, s.4)

6. Section 5 of P.L.2004, c.89 (C.13:1D-145) is amended to read as follows:

5. a. There is established in the Department of Environmental Protection a Division of Smart Growth under the direction of a director, who shall be appointed by the Governor and report to the Commissioner of Environmental Protection. The director shall review and take action on permits for which the applicant has requested expedited permit application review pursuant to this section.

b. The director shall coordinate and expedite the review of permits issued by the division with the Smart Growth Ombudsman appointed pursuant to section 2 of P.L.2004, c.89 (C.52:27D-10.3).

c. (1) An applicant may request an expedited permit application review for a proposed project in a smart growth area. In order to qualify for expedited permit application review pursuant to this section, an applicant shall include with a permit application all necessary documentation, a request for expedited permit application review, and the permit fee established in accordance with subsection d. of this section. In the case of a proposed project in a smart growth area which requires more than one permit, the applicant shall submit permit applications for all such required permits, including any general permits or permits-by-rule, to the division at the same time, and these multiple permit applications shall be reviewed by the division and be subject to the provisions of this section in the same manner as an single permit application.

The permit application shall be signed by the applicant and by a professional qualified and registered in accordance with subsection e. of this section, certifying that [a] the permit application is complete and that the statutory and regulatory requirements for the permit have been met by the applicant. A copy of the permit application and the request shall also be submitted to the ombudsman and to the clerk of the municipality and the clerk of the county in which the proposed project is located.

A permit application that qualifies for expedited permit application review pursuant to this section shall be subject to the [following] time frames [:] specified in this subsection.

(a) [the] The division shall notify an applicant within 20 working days after the filing date if the permit application lacks a submission identified on a checklist therefor, or a submission has not been completed. If [an] a permit application, including the permit fee and all necessary documentation, is determined to be complete, or if a notice of incompleteness is not provided within 20 working days after the filing of the permit application, the permit application shall be deemed complete for purposes of commencing a technical review. Notice of each permit application as appropriate deemed complete for purposes of commencing a technical review shall be published in the DEP Bulletin and posted on the official website of the Department of Environmental Protection. In the case of a permit application affecting freshwater wetlands, a complete permit application shall include an effective letter of interpretation issued by the department concerning the delineation of the freshwater wetlands [;].

(b) (i) [except] Except as otherwise provided in subsubparagraph (ii) of this subparagraph, the division shall notify an applicant if the permit application is technically complete or issue a notice of deficiency within 45 days after the filing of the permit application. If [an] a permit application is determined to be technically complete, or if a notice of deficiency is not issued within 45 days after the filing of the permit application, the permit application shall be deemed technically complete. A notice of deficiency shall itemize all deficiencies that must be addressed in order for the permit application to be determined technically complete. A notice of deficiency shall be deemed exclusive and further review for technical completeness shall be limited to the items so identified[;] .

(ii) [in] In the case of water allocation permits issued pursuant to the "Water Supply Management Act," P.L.1981, c.262 (C.58:1A-1 et seq.) and P.L.1993, c.202 (C.58:1A-7.3 et [seq.] al. ) for a diversion from an unconfined aquifer or surface water body and New Jersey Pollutant Discharge Elimination System permits issued pursuant to the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.) for a discharge of 1,000,000 gallons per day or greater, the division shall notify an applicant if the permit application is technically complete or issue a notice of deficiency within 60 days after the filing of the permit application. If [an] a permit application is determined to be technically complete, or if a notice of deficiency is not issued within 60 days after the filing of the permit application, the permit application shall be deemed technically complete [;] .

[(c) except as provided in subparagraphs (e) and (f) of this paragraph, the division shall take action on a technically complete permit application within 45 days, except that this time period may be extended for a 30-day period by the mutual consent of the applicant and the department. Except for any New Jersey Pollutant Discharge Elimination System permit issued pursuant to the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.) , in the event that the department fails to take action on an application for a permit within the 45-day period specified herein, or within the periods set forth in subparagraphs (e) and (f) of this paragraph, then the application shall be deemed to have been approved;

(d) if] (iii) If more than one notice of deficiency is issued by the division, the applicant may request an expedited hearing in accordance with section 14 of P.L.2004, c.89 (C.52:14F-17) to determine whether the permit application is technically complete [;

(e) in the cases of water allocation permits issued pursuant to the "Water Supply Management Act," P.L.1981, c.262 (C.58:1A-1 et seq.) and P.L.1993, c.202 (C.58:1A-7.3 et seq.) for a diversion from a confined aquifer and New Jersey Pollutant Discharge Elimination System permits issued pursuant to the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.) for a discharge of less than 1,000,000 gallons per day, after a permit application is deemed complete, and after a 30-day public comment period, the department shall take action on the permit within five days if minimal or no comments were received in the public comment period, or within 15 days if more than minimal comments were received in the public comment period; and

(f) in the cases of water allocation permits issued pursuant to the "Water Supply Management Act," P.L.1981, c.262 (C.58:1A-1 et seq.) and P.L.1993, c.202 (C.58:1A-7.3 et seq.) for a diversion from an unconfined aquifer or surface water body and New Jersey Pollutant Discharge Elimination System permits issued pursuant to the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.) for a discharge of 1,000,000 gallons per day or greater, after a permit application is deemed complete, and after a 30-day public comment period, the department shall take action on the permit within five days if minimal or no comments were received in the public comment period, or within 45 days if more than minimal comments were received in the public comment period].

(c) (i) The division shall hold one public meeting on each expedited permit application review requested pursuant to this paragraph. If, during the technical review period provided pursuant to subsubparagraph (i) or (ii) of subparagraph (b) of this paragraph, the division receives a written request for a public hearing to be held on the permit application, the division shall conduct this public meeting as a public hearing.

(ii) The division shall schedule and provide public notice of a public meeting or public hearing required pursuant to this subparagraph no later than 30 days after an application for an expedited permit application review is deemed technically complete pursuant to subsubparagraph (i) or (ii) of subparagraph (b) of this paragraph. If the proposed project requires more than one permit from the department, this public meeting or public hearing shall be held after all of the necessary applications are deemed technically complete.

(d) (i) The division shall issue a concise, binding statement of its permit decision within 15 days after the conclusion of the public meeting or public hearing held pursuant to subparagraph (c) of this paragraph, except that this time period may be extended by the mutual consent of the applicant and the division.

(ii) The division shall issue its approval, approval with conditions, or denial of a permit application, including a response to public comment document, if appropriate, within 30 days after issuing the statement required pursuant to subsubparagraph (i) of this subparagraph, except that this time period may be extended by the mutual consent of the applicant and the division.

(e) Except for any New Jersey Pollutant Discharge Elimination System permit issued pursuant to the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.), in the event that the division fails to take action on a permit application within the 75-day period set forth in subparagraphs (c) and (d) of this paragraph, then the permit application shall be deemed to have been approved, unless any time period was extended by the mutual consent of the applicant and the division.

(2) Nothing in this subsection shall supersede shorter periods for department action provided by applicable law.

d. The direct and indirect costs of personnel, equipment, operating expenses, and activities of the division shall be funded solely through permit fees for expedited permits issued in [the] smart growth areas pursuant to this section. The [department] Department of Environmental Protection shall, in consultation with the ombudsman, establish permit fees necessary for the department to administer and enforce the expedited permit application review program established pursuant to this section. The fee schedule established pursuant to this subsection shall include the department's pro rata share of the budget of the Smart Growth Ombudsman. [Within 30 days after the date of enactment of P.L.2004, c.89 (C.52:27D-10.2 et al.)] Prior to the effective date of the rules and regulations required to be adopted pursuant to subsection e. of this section , the department, in consultation with the ombudsman, shall publish a schedule of permit fees in the New Jersey Register and may amend the fee schedule as necessary. The fee schedule may provide for increased fees for complex projects.

e. (1) The Director of the Division of Smart Growth shall, [within 120 days after the date of enactment of P.L.2004, c.89 (C.52:27D-10.2 et al.)] pursuant to rules and regulations adopted in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) , develop a program for the qualification and registration of professionals who shall be authorized to certify that a permit application is complete and that the statutory and regulatory requirements for the permit have been met by the applicant. The requirements for qualification and registration may include, but [shall] need not be limited to, professional licensure relevant to the subject matter of the permit, a review of projects undertaken by the professional applying for qualification and registration, and a review of the nature of the professional's services provided on each project.

(2) The director shall include in the program for the qualification and registration of professionals any standards or requirements necessary for proper administration and enforcement of the provisions of P.L.2004, c.89 (C.52:27D-10.2 et al.), and shall provide for the suspension or revocation of the qualification and registration of professionals as provided in this subsection.

(3) Any person who negligently violates any requirement of the program established by the [department] division for the qualification and registration of professionals may lose professional licensure for one year, may be barred from qualification and registration for a period of three years, and the firm with which that individual is associated may be barred from seeking qualification and registration for a period of three years.

(4) If a person willfully or recklessly violates any requirement of the program established by the [department] division for the qualification and registration of professionals, that individual shall lose professional licensure for one year, shall be permanently barred from qualification and registration, and the firm with which that individual is associated shall be permanently barred from seeking qualification and registration.

(5) Prior to any suspension, revocation, or failure to renew a person's qualification and registration, the [department] division shall afford the person or firm an opportunity for a hearing in accordance with the [provisions of the] "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), except that, if the [department] division has reason to believe that a condition exists which poses an imminent threat to the public health, safety , or welfare, it may order the immediate suspension of qualification and registration pending the outcome of the hearing.

f. The Director of the Division of Smart Growth, after consultation with the Smart Growth Ombudsman, may adopt rules and regulations in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) as appropriate to implement the requirements of this section and to encourage development in [the] smart growth areas.

g. Nothing in this section shall be construed or implemented in such a way as to modify any requirement of law that is necessary to retain federal delegation to, or assumption by, the State of the authority to implement a federal law or program , or to jeopardize the receipt of any federal funding available to the State.

h. Applications for an expedited permit application review pursuant to subsection c. of this section shall not be accepted until [120] 60 days following the [date of enactment of P.L.2004, c.89 (C.52:27D-10.2 et al.)] effective date of the rules and regulations required to be adopted pursuant to subsection e. of this section. Applications pending [on the date of enactment of P.L.2004, c.89 (C.52:27D-10.2 et al.)] with the Department of Environmental Protection shall, upon request of the applicant, be processed in the expedited permit application review program when [it] the program becomes effective. A permit application that is the subject of a request under this provision shall be transferred to the Division of Smart Growth for processing in accordance with P.L.2004, c.89 (C.52:27D-10.2 et al.).

i. The Department of Environmental Protection may revoke or modify any permit issued pursuant to this section upon a finding that (1) the applicant or the professional qualified and registered in accordance with subsection e. of this section provided a false statement, representation, or certification in any application, record, or other document submitted to the division as part of the expedited permit application and upon which the permit issuance was based, or (2) the statutory and regulatory requirements for the permit have not been met by the applicant.

(cf: P.L.2004, c.89, s.5)

7. Section 6 of P.L.2004, c.89 (C.27:1E-1) is amended to read as follows:

6. As used in section 7 of P.L.2004, c.89 (C.27:1E-2) and section 15 of P.L. , c. (C. ) (pending before the Legislature as this bill) :

"Applicant" means any person applying for a permit pursuant to [sections] section 7 [or 10, as appropriate,] of P.L.2004, c.89 (C.27:1E-2 [or C.13:1D-146] ) or section 14 of P.L. , c. (C. ) (pending before the Legislature as this bill) ;

"Ombudsman" or "Smart Growth Ombudsman" means the Smart Growth Ombudsman appointed by the Governor pursuant to section 2 of P.L.2004, c.89 (C.52:27D-10.3);

"Permit" means [any permit or approval issued by the Department of Transportation pursuant to any law or any rule or regulation adopted pursuant thereto] (a) an access permit issued by the Commissioner of Transportation pursuant to the "State Highway Access Management Code," N.J.A.C.16:47-1.1 et seq., as authorized pursuant to sections 4 and 5 of P.L.1989, c.32 (C.27:7-92 and C.27:7-93), (b) a highway occupancy permit issued by the Commissioner of Transportation pursuant to chapter 41 of Title 16 of the New Jersey Administrative Code (N.J.A.C.16:41-1.1 et seq.), as authorized pursuant to P.L.1966, c.301 (C.27:1A-1 et seq.), (c) an aeronautical facility license issued by the Commissioner of Transportation pursuant to chapter 54 of Title 16 of the New Jersey Administrative Code (N.J.A.C.16:54-1.1 et seq.), as authorized pursuant to P.L.1953, c.234 (C.6:1-44.1), or (d) a permit for the creation or expansion of a prohibited use or vertical height development within an airport safety zone issued by the Commissioner of Transportation pursuant to subchapter 6 of chapter 62 of Title 16 of the New Jersey Administrative Code (N.J.A.C.16:62-6.1 et seq.), as authorized pursuant to P.L.1983, c.260 (C.6:1-80 et seq.);

"Person" means any individual, corporation, company, partnership, firm, association, owner or operator of a treatment works, political subdivision of this State, or State or interstate agency; and

(cf: P.L.2004, c.89, s.6)

8. Section 7 of P.L.2004, c.89 (C.27:1E-2) is amended to read as follows:

7. a. There is established in the Department of Transportation a Division of Smart Growth under the direction of a director, who shall be appointed by the Governor and report to the Commissioner of Transportation. The director shall review and take action on permits for which the applicant has requested expedited permit application review pursuant to this section.

b. The director shall coordinate and expedite the review of permits issued by the division with the Smart Growth Ombudsman appointed pursuant to section 2 of P.L.2004, c.89 (C.52:27D-10.3).

c. (1) An applicant may request an expedited permit application review for a proposed project in a smart growth area. In order to qualify for expedited permit application review pursuant to this section, an applicant shall include with a permit application all necessary documentation, a request for expedited permit application review, and the permit fee established in accordance with subsection d. of this section. The permit application shall be signed by the applicant and by a professional qualified and registered in accordance with subsection e. of this section, certifying that [a] the permit application is complete and that the statutory and regulatory requirements for the permit have been met by the applicant. A copy of the permit application and the request shall also be submitted to the ombudsman and to the clerk of the municipality and the clerk of the county in which the proposed project is located. A permit application that qualifies for expedited permit application review pursuant to this section shall be subject to the following time frames:

(a) the division shall notify an applicant within 20 working days after the filing date if the permit application lacks a submission identified on a checklist therefor, or a submission has not been completed. If [an] a permit application, including the permit fee and all necessary documentation, is determined to be complete, or if a notice of incompleteness is not provided within 20 working days after the filing of the permit application, the permit application shall be deemed complete for purposes of commencing a technical review;

(b) the division shall notify an applicant if the permit application is technically complete or issue a notice of deficiency within 45 days after the filing of the permit application. If [an] a permit application is determined to be technically complete, or if a notice of deficiency is not issued within 45 days after the filing of the permit application, the permit application shall be deemed technically complete. A notice of deficiency shall itemize all deficiencies that must be addressed in order for the permit application to be determined technically complete. A notice of deficiency shall be deemed exclusive and further review for technical completeness shall be limited to the items so identified;

(c) the division shall take action on a technically complete permit application within 45 days, except that this time period may be extended for a 30-day period by the mutual consent of the applicant and the [department] division . In the event that the [department] division fails to take action on [an] a permit application [for a permit] within the 45-day period specified herein or within the allowed extended period , then the permit application shall be deemed to have been approved; and

(d) if more than one notice of deficiency is issued by the division, the applicant may request an expedited hearing in accordance with section 14 of P.L.2004, c.89 (C.52:14F-17) to determine whether the permit application is technically complete.

(2) Nothing in this subsection shall supersede shorter periods for department action provided by applicable law.

d. The direct and indirect costs of personnel, equipment, operating expenses, and activities of the division shall be funded solely through permit fees for expedited permits issued in [the] smart growth areas pursuant to this section . The [department] Department of Transportation shall, in consultation with the ombudsman, establish permit fees necessary for the department to administer and enforce the program. The fee schedule established pursuant to this subsection shall include the department's pro rata share of the budget of the Smart Growth Ombudsman. [Within 30 days after the date of enactment of P.L.2004, c.89 (C.52:27D-10.2 et al.)] Prior to the effective date of the rules and regulations required to be adopted pursuant to subsection e. of this section , the department, in consultation with the ombudsman, shall publish a schedule of permit fees in the New Jersey Register and may amend the fee schedule as necessary. The fee schedule may provide for increased fees for complex projects.

e. (1)The Director of the Division of Smart Growth shall, [within 120 days after the date of enactment of P.L.2004, c.89 (C.52:27D-10.2 et al.)] pursuant to rules and regulations adopted in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), develop a program for the qualification and registration of professionals who shall be authorized to certify that a permit application is complete and that the statutory and regulatory requirements for the permit have been met by the applicant. The requirements for qualification and registration may include, but [shall] need not be limited to, professional licensure relevant to the subject matter of the permit, a review of projects undertaken by the professional applying for qualification and registration, and a review of the nature of the professional's services provided on each project.

(5) Prior to any suspension, revocation, or failure to renew a person's qualification and registration, the [department] division shall afford the person or firm an opportunity for a hearing in accordance with the [provisions of the] "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), except that, if the [department] division has reason to believe that a condition exists which poses an imminent threat to the public health, safety, or welfare, it may order the immediate suspension of qualification and registration pending the outcome of the hearing.

f. The [director] Director of the Division of Smart Growth , after consultation with the Smart Growth Ombudsman, may adopt rules and regulations in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) as appropriate to implement the requirements of this section and to encourage development in [the] smart growth areas.

h. Applications for an expedited permit application review pursuant to subsection c. of this section shall not be accepted until [120] 60 days following the [date of enactment of P.L.2004, c.89 (C.52:27D-10.2 et al.)] effective date of the rules and regulations required to be adopted pursuant to subsection e. of this section. Applications pending [on the date of enactment of P.L.2004, c.89 (C.52:27D-10.2 et al.)] with the Department of Transportation shall, upon request of the applicant, be processed in the expedited permit application review program when [it] the program becomes effective. A permit application that is the subject of a request under this provision shall be transferred to the Division of Smart Growth for processing in accordance with P.L.2004, c.89 (C.52:27D-10.2 et al.).

i. The Department of Transportation may revoke or modify any permit issued pursuant to this section upon a finding that (1) the applicant or the professional qualified and registered in accordance with subsection e. of this section provided a false statement, representation, or certification in any application, record, or other document submitted to the division as part of the expedited permit application and upon which the permit issuance was based, or (2) the statutory and regulatory requirements for the permit have not been met by the applicant.

(cf: P.L.2004, c.89, s.7)

9. Section 10 of P.L.2004, c.89 (C.13:1D-146) is amended to read as follows:

10. a. In addition to the provisions of subsection c. of section 5 [, subsection c. of section 7 and subsection c. of section 9] of P.L.2004, c.89 (C.13:1D-145 [, C.27:1E-2 and C.52:27D-10.6] ), expedited permit mechanisms, such as [a] permits-by-rule, general permits, and certification by professionals qualified and registered in accordance with subsection e. of section 5 [, subsection e. of section 7 or subsection e. of section 9] of P.L.2004, c.89 (C.13:1D-145 [, C.27:1E-2 and C.52:27D-10.6] ) [, as appropriate,] shall be made available in [the] smart growth areas as determined appropriate by the Commissioner of Environmental Protection [, the Commissioner of Transportation, or the Commissioner of Community Affairs, as appropriate,] after consultation with the Smart Growth Ombudsman.

b. The following permits or approvals in smart growth areas shall be by permit-by-rule upon certification of compliance with statutory and regulatory requirements by a professional qualified and registered in accordance with subsection e. of section 5 of P.L.2004, c.89 (C.13:1D-145):

(1) treatment works approvals pursuant to section 6 of P.L.1977, c.74 (C.58:10A-6) for sewer lines, pumping stations, force mains or service connections in sewer service areas;

(2) water quality management plan amendments adopted pursuant to the "Water Quality Planning Act," P.L.1977, c.75 (C.58:11A-1 et seq.) for new or expanded sewer service areas associated with an existing wastewater treatment facility;

(3) water main extension permits pursuant to the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et seq.) where a public water system has available, uncommitted resources;

(4) well drilling permits pursuant to section 10 of P.L.1947, c.377 (C.58:4A-14); and

(5) the following general permits issued by the Department of Environmental Protection for activities in the waterfront development area designated pursuant to R.S.12:5-3 and in accordance with rules and regulations in effect on June 14, 2004:

(a) the landfall of utilities including cable, including electric, television and fiber optics, telecommunication, petroleum, natural gas, water and sanitary sewer lines constructed in tidal water bodies authorized pursuant to R.S.12:5-1 et seq. [or the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.)] ;

(b) minor maintenance dredging in man-made lagoons; and

(c) the voluntary reconstruction of a non-damaged legally constructed, currently habitable residential or commercial development landward of the existing footprint of development.

c. The Director of the Division of Smart Growth established in the Department of Environmental Protection pursuant to subsection a. of section 5 of P.L.2004, c.89 (C.13:1D-145) shall take action on the following freshwater wetlands general permits issued by the Department of Environmental Protection pursuant to the Freshwater Wetlands Protection Act Rules adopted under the authority of the "Freshwater Wetlands Protection Act," P.L.1987, c.156 (C.13:9B-1 et seq.) and in effect on June 14, 2004, provided the permit application includes an effective letter of interpretation issued by the department pursuant to section 8 of P.L.1987, c.156 (C.13:9B-8), in smart growth areas within 45 days upon certification of compliance with statutory and regulatory requirements by a professional qualified and registered in accordance with subsection e. of section 5 of P.L.2004, c.89 (C.13:1D-145):

(1) regulated activities in freshwater wetlands, transition areas, or State open waters, necessary for the construction or maintenance of an underground utility line provided that any permanent above-ground disturbance of wetlands, transition area, or State open waters shall be no greater than one acre;

(2) [a] regulated [activity] activities in a freshwater wetland, transition area, or State open water, if the freshwater wetland or State open water is not part of a surface water tributary system discharging into an inland lake or pond, or a river or stream, and provided the activity shall disturb no more than one-half acre of a freshwater wetland, transition area, or State open water up to one-half acre;

(3) minor road crossings, including attendant features such as shoulders, sidewalks and embankments, provided that the total area of disturbance shall not exceed one-quarter acre of freshwater wetland, transition area, and State open water, without regard to the distance or length of road, to access developable uplands;

(4) regulated activities in freshwater wetlands, transition areas, or State open waters, necessary to stabilize the bank of a water body in order to reduce or prevent erosion through bioengineering methods;

(5) regulated activities in freshwater wetlands, transition areas, or State open waters, necessary for the construction of an above ground utility line;

(6) the disturbance of certain degraded freshwater wetlands, transition areas, or State open waters necessary for redevelopment of an area previously significantly disturbed by industrial or commercial activities provided that the disturbance shall not exceed one-tenth acre of freshwater wetlands and one-quarter acre total disturbance including transition areas;

(7) regulated activities in freshwater wetlands or transition areas, necessary for the construction of additions or appurtenant improvements to residential dwellings lawfully existing prior to July 1, 1988, provided that the improvements or additions require less than a cumulative surface area of 750 square feet of fill or disturbance and shall not result in new alterations to a freshwater wetland outside of the 750 square foot area;

(8) regulated activities in freshwater wetlands, transition areas , and State open waters necessary for surveying and investigative activities, including: soil borings dug by machine; hand dug soil borings larger than three feet in diameter or depth; cutting of vegetation by machine for a survey line; cutting of vegetation by hand for a survey line; and digging of exploratory pits and other temporary activities necessary for a geotechnical or archaeological investigation; and

(9) regulated activities in freshwater wetlands and transition areas necessary for the repair or modification of a malfunctioning individual subsurface sewage disposal system provided that the activity shall disturb no more than one-quarter acre of freshwater wetlands or transition areas combined.

d. [The Director of the Division of Smart Growth established in the Department of Environmental Protection pursuant to subsection a. of section 5 of P.L.2004, c.89 (C.13:1D-145) shall take action on minor stream encroachment permits for an encroachment project that does not require hydrologic or hydraulic review; does not require review of any stormwater detention basin; does not increase potential for erosion or sedimentation in stream and does not require substantial channel modification or relocation; and does not need to be reviewed for the zero percent or 20 percent net fill limitations other than that associated with a single family dwelling, in smart growth areas within 30 days upon certification of compliance with statutory and regulatory requirements by a professional qualified and registered in accordance with subsection e. of section 5 of P.L.2004, c.89 (C.13:1D-145).] Deleted by amendment, P.L. , c. (pending before the Legislature as this bill)

e. [The following Highway Occupancy permits or approvals in smart growth areas shall be by permit-by-rule upon certification of compliance with statutory and regulatory requirements by a professional qualified and registered in accordance with subsection e. of section 7 of P.L.2004, c.89 (C.27:1E-2):

(1) drainage;

(2) utility openings; and

(3) utility poles (new and relocation).] Deleted by amendment, P.L. , c. (pending before the Legislature as this bill)

f. Notwithstanding the provisions of P.L.1987, c.156 (C.13:9B-1 et seq.), or any rule or regulation adopted pursuant thereto, to the contrary, an activity conducted under the authority of a general permit issued by the Department of Environmental Protection pursuant to section 23 of P.L.1987, c.156 (C.13:9B-23) may occur in a vernal habitat located within a smart growth area or in a transition area adjacent to a vernal habitat located within a smart growth area.

g. A copy of the application for a general permit or a notice of the [permit by rule] permit-by-rule provided pursuant to this section shall be submitted to the ombudsman and to the clerk of the municipality and the clerk of the county in which the proposed project is located.

h. Nothing in this section shall be construed or implemented in such a way as to modify any requirement of law that is necessary to retain federal delegation to, or assumption by, the State of the authority to implement a federal law or program , or to jeopardize the receipt of any federal funding available to the State.

i. An applicant who has requested an expedited permit application review for a proposed project in a smart growth area pursuant to section 5 of P.L.2004, c.89 (C.13:1D-145) shall not be eligible for any expedited permit mechanism, such as a permit-by-rule, general permit, or certification by a professional qualified and registered in accordance with subsection e. of section 5 of P.L.2004, c.89 (C.13:1D-145), pursuant to this section for that same project except as otherwise provided pursuant to section 5 of P.L.2004, c.89 (C.13:1D-145).

j. The Department of Environmental Protection may revoke or modify any expedited permit mechanism, such as a permit-by-rule, general permit, or certification by a professional qualified and registered in accordance with subsection e. of section 5 of P.L.2004, c.89 (C.13:1D-145), upon a finding that (1) the applicant or the professional qualified and registered in accordance with subsection e. of section 5 of P.L.2004, c.89 (C.13:1D-145) provided a false statement, representation, or certification in any application, record, or other document submitted to the division as part of the permit application and upon which the permit issuance under an expedited permit mechanism was based, or (2) the statutory and regulatory requirements for the permit have not been met by the applicant.

(cf: P.L.2004, c.89, s.10)

10. Section 11 of P.L.2004, c.89 (C.52:14F-14) is amended to read as follows:

11. As used in sections 12 through 18 of P.L.2004, c.89 (C.52:14F-15 through C.52:14F-21):

"Applicant" means any person applying for a permit pursuant to sections [3,] 5, 7, [9] or 10 of P.L.2004, c.89 ( [C.52:27D-10.4,] C.13:1D-145, C.27:1E-2, [C.52:27D-10.6,] or C.13:1D-146) or section 15 of P.L. , c. (C. ) (pending before the Legislature as this bill) ;

"Division of Smart Growth" means either the Division of Smart Growth established in the Department of Environmental Protection pursuant to subsection a. of section 5 of P.L.2004, c.89 (C.13:1D-145) or the Division of Smart Growth established in the Department of Transportation pursuant to subsection a. of section 7 of P.L.2004, c.89 (C.27:1E-2);

["Ombudsman" or "Smart Growth Ombudsman" means the Smart Growth Ombudsman appointed by the Governor pursuant to section 2 of P.L.2004, c.89 (C.52:27D-10.3);]

"Permit" means :

"Person" means any individual, corporation, company, partnership, firm, association, owner or operator of a treatment works, political subdivision of this State, or State or interstate agency; and

"Smart growth area" means an area designated pursuant to P.L.1985, c.398 (C.52:18A-196 et seq.) as Planning Area 1 (Metropolitan), Planning Area 2 (Suburban), or a designated urban center or regional center [, or a designated growth center in an endorsed plan ; a smart growth area and planning area designated in a master plan adopted by the New Jersey Meadowlands Commission pursuant to subsection (i) of section 6 of P.L.1968, c.404 (C.13:17-6); a growth area designated in the comprehensive management plan prepared and adopted by the Pinelands Commission pursuant to section 7 of the "Pinelands Protection Act," P.L.1979, c.111 (C.13:18A-8); an urban enterprise zone designated pursuant to P.L.1983, c.303 (C.52:27H-60 et seq.) or P.L.2001, c.347 (C.52:27H-66.2 et al.); an area determined to be in need of redevelopment pursuant to sections 5 and 6 of P.L.1992, c.79 (C.40A:12A-5 and 40A:12A-6) and as approved by the Department of Community Affairs; or similar areas designated by the Department of Environmental Protection] within Planning Area 3 (Fringe) . "Smart growth area" shall not include those areas of Planning Area 2 in which a municipality with area designated as Planning Area 2 within its boundaries has by ordinance, adopted within one year after the date of enactment of P.L. , c. (C. ) (pending before the Legislature as this bill), declared that proposed projects within its boundaries shall not be eligible for permits pursuant to P.L.2004, c.89 (C.52:27D-10.2 et al.), and provided that such ordinance is duly filed upon adoption with the Smart Growth Ombudsman, the Division of Smart Growth established in the Department of Environmental Protection pursuant to subsection a. of section 5 of P.L.2004, c.89 (C.13:1D-145), and the Division of Smart Growth established in the Department of Transportation pursuant to subsection a. of section 7 of P.L.2004, c.89 (C.27:1E-2). A municipality with areas designated as Planning Area 2 within its boundaries that subsequently wishes to revise such an ordinance, or a municipality that wishes to allow for permits pursuant to P.L.2004, c.89 (C.52:27D-10.2 et al.) within specific portions of those areas designated as Planning Area 2 within its boundaries, shall petition for plan endorsement by the State Planning Commission pursuant to the "State Planning Act," P.L.1985, c.398 (C.52:18A-196 et al.). "Smart growth area" also shall not include any environmentally sensitive area identified by the Department of Environmental Protection pursuant to rules and regulations reviewed by the Smart Growth Ombudsman pursuant to subsection d. of section 3 of P.L.2004, c.89 (C.52:27D-10.4) and adopted in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

(cf: P.L.2004, c.89, s.11)

11. Section 14 of P.L.2004, c.89 (C.52:14F-17) is amended to read as follows:

14. a. Within 15 working days after the receipt by the Division of Smart Growth of notice of an applicant's request for an expedited review pursuant to [subparagraph (d)] subsubparagraph (iii) of subparagraph (b) of paragraph (1) of subsection c. of section 5 [,] or subparagraph (d) of paragraph (1) of subsection c. of section 7 [, or subparagraph (d) of paragraph (1) of subsection c. of section 9] of P.L.2004, c.89 (C.13:1D-145 [,] or C.27:1E-2 [or C.52:27D-10.6]), as appropriate, the Division of Smart Growth shall transmit to the clerk of the Office of Administrative Law the administrative record which shall consist of:

(1) the request for an expedited review of the permit application;

(2) the permit application;

(3) documents the applicant filed in support of the permit application;

(4) the qualified and registered professional's certification that the permit application is complete and meets all statutory and regulatory requirements for approval;

(5) the Division of Smart Growth's notices of deficiency, if any, that the permit application is technically incomplete;

(6) the Division of Smart Growth's documentation, if any, in support of its determination that the permit application is technically incomplete; and

(7) the applicant's request for an expedited hearing.

b. The case shall be assigned to an administrative law judge who shall be a member of the Smart Growth Unit. Within 15 working days after the filing of the case with the clerk of the Office of Administrative Law, the parties shall file briefs with the administrative law judge. There shall be no presumptions in favor of either party. No other evidence shall be admitted or relied upon, except by consent of the parties and with approval of the administrative law judge. Discovery shall not be available, except by consent of the parties. The standard of review shall be by the preponderance of the evidence.

c. Within 30 days after the date of submission of the briefs, the administrative law judge shall issue a written decision as to whether the permit application is technically complete. The time limits established herein shall not be extended except by consent of the parties.

d. If the administrative law judge decides that the permit application is technically complete, the Director of the Division of Smart Growth shall take action to approve, approve with conditions, or deny the permit application within 45 days after [the] receipt of the decision.

e. The decision of the administrative law judge on the issue of technical completeness of the permit application shall be the final decision binding on the parties and shall not be subject to further review or appeal by either the Division of Smart Growth established pursuant to section 5 [,] or section 7 [or 9] of P.L.2004, c.89 (C.13:1D-145 [,] or C.27:1E-2 [or C.52:27D-10.6] ), as appropriate, or the applicant.

f. An applicant who does not request an expedited review pursuant to [subparagraph (d)] subsubparagraph (iii) of subparagraph (b) of paragraph (1) of subsection c. of section 5 [,] or subparagraph (d) of paragraph (1) of subsection c. of section 7 [or subparagraph (d) of paragraph (1) of subsection c. of section 9] of P.L.2004, c.89 (C.13:1D-145 [,] or C.27:1E-2 [or C.52:27D-10.6] ), as appropriate, retains the right to an administrative hearing and decision on the permit application pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

(cf: P.L.2004, c.89, s.14)

12. Section 15 of P.L.2004, c.89 (C.52:14F-18) is amended to read as follows:

15. a. If an application for a permit for a proposed project in a smart growth area is denied, the Office of Administrative Law shall provide an expedited hearing to review the denial of the permit upon the request of the applicant. An applicant who does not request a hearing pursuant to this section retains the right to an administrative hearing and decision on the permit application pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

b. Within 15 working days after receipt by the Division of Smart Growth of notice of an applicant's request for an expedited hearing, the division shall transmit to the clerk of the Office of Administrative Law the administrative record which shall consist of:

(1) the permit application;

(2) documents the applicant filed in support of the permit application;

(3) the qualified and registered professional's certification that the permit application is complete and meets all statutory and regulatory requirements for approval;

(4) the Division of Smart Growth's notices of deficiency, if any, that the permit application is incomplete;

(5) the Division of Smart Growth's documentation, if any, in support of its determination to deny the permit application; and

(6) the applicant's request for an expedited hearing and decision.

c. The case shall be assigned to an administrative law judge who shall be a member of the Smart Growth Unit. The administrative law judge shall establish an expedited briefing and hearing schedule. Any hearings shall be concluded within 45 days after receipt of the case by the administrative law judge.

d. Nothing herein shall diminish the applicant's obligation to prove in the permit application process that [it] the applicant satisfies standards for approval of [an] a permit application. There shall be no presumptions in favor of either party as to the underlying permit decision. The standard of review shall be by the preponderance of the evidence.

e. Within 45 days after the closing of the record, the administrative law judge shall issue a written decision as to whether the applicant has satisfied the standards required for the permit. The time limits established herein shall not be extended except by consent of the parties and the administrative law judge.

f. If the administrative law judge decides that the permit application should be approved, the Director of the Division of Smart Growth shall take action to approve or approve with conditions the permit within 10 working days after receipt of the decision.

g. The decision of the administrative law judge shall be the final decision binding on the parties and shall not be subject to further review or appeal by either the Division of Smart Growth established pursuant to section 5 [,] or section 7 [or 9] of P.L.2004, c.89 (C.13:1D-145 [,] or C.27:1E-2 [or C.52:27D-10.6] ), as appropriate, or the applicant.

(cf: P.L.2004, c.89, s.15)

13. Section 16 of P.L.2004, c.89 (C.52:14F-19) is amended to read as follows:

16. a. If an application for a permit for a proposed project in a smart growth area is approved by the Division of Smart Growth with terms or conditions, the Office of Administrative Law shall provide an expedited hearing and decision on any terms or conditions of such permit upon the request of the applicant. An applicant who does not request an expedited hearing pursuant to this section retains the right to an administrative hearing and decision on the permit application pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).

b. Within 15 working days after receipt by the agency of notice of an applicant's request for an expedited hearing and decision, the Division of Smart Growth shall transmit to the clerk of the Office of Administrative Law the [case] administrative record which shall consist of:

(1) the permit application;

(2) documents the applicant filed in support of the permit application;

(3) the qualified and registered professional's certification that the permit application is complete and meets all statutory and regulatory requirements for approval;

(4) the Division of Smart Growth's notices of deficiency, if any, that the permit application is incomplete;

(5) the Division of Smart Growth's documentation, if any, in support of its determination to include the terms or conditions that are being contested; and

(6) the applicant's request for an expedited hearing and decision.

f. If the administrative law judge decides that a permit term or condition should be deleted or amended, the Director of the Division of Smart Growth shall take action to revise the terms or conditions of the permit accordingly within 10 working days after receipt of the decision.

(cf: P.L.2004, c.89, s.16)

14. Section 19 of P.L.2004, c.89 (C.13:1D-147) is amended to read as follows:

19. Nothing in this act shall be construed to apply to, or affect in any way [,] :

a. the [preservation area of the] Highlands Region as defined pursuant to section 3 of P.L.2004, c.120 [(C.13:20-1 et al.)] (C.13:20-3), the regional master plan or any rules or regulations adopted by the Highlands Water Protection and Planning Council pursuant to P.L.2004, c.120 (C.13:20-1 et al.) , or [the authority of any State department or agency to adopt] any rules and regulations adopted by any State department or agency for the [preservation area] Highlands Region; or

b. the pinelands area as defined pursuant to the "Pinelands Protection Act," P.L.1979, c.111 (C.13:18A-1 et seq.), or the comprehensive management plan or any rules or regulations adopted by the Pinelands Commission pursuant to P.L.1979, c.111 (C.13:18A-1 et seq.).

(cf: P.L.2004, c.89, s.19)

15. (New section) a. In addition to the provisions of subsection c. of section 7 of P.L.2004, c.89 (C.27:1E-2), expedited permit mechanisms, such as permits-by-rule, general permits, and certification by professionals qualified and registered in accordance with subsection e. of section 7 of P.L.2004, c.89 (C.27:1E-2), shall be made available in smart growth areas as determined appropriate by the Commissioner of Transportation after consultation with the Smart Growth Ombudsman.

b. The following Highway Occupancy permits or approvals in smart growth areas shall be by permit-by-rule upon certification of compliance with statutory and regulatory requirements by a professional qualified and registered in accordance with subsection e. of section 7 of P.L.2004, c.89 (C.27:1E-2):

(1) drainage;

(2) utility openings; and

(3) utility poles (new and relocation).

c. A copy of the application for a general permit or a notice of the permit-by-rule provided pursuant to this section shall be submitted to the ombudsman and to the clerk of the municipality and the clerk of the county in which the proposed project is located.

d. Nothing in this section shall be construed or implemented in such a way as to modify any requirement of law that is necessary to retain federal delegation to, or assumption by, the State of the authority to implement a federal law or program, or to jeopardize the receipt of any federal funding available to the State.

e. The Department of Transportation may revoke or modify any expedited permit mechanism, such as a permit-by-rule, general permit, or certification by a professional qualified and registered in accordance with subsection e. of section 7 of P.L.2004, c.89 (C.27:E-2), upon a finding that (1) the applicant or the professional qualified and registered in accordance with subsection e. of section 7 of P.L.2004, c.89 (C.27:E-2) provided a false statement, representation, or certification in any application, record, or other document submitted to the division as part of the application and upon which the permit issuance under an expedited permit mechanism was based, or (2) the statutory and regulatory requirements for the permit have not been met by the applicant.

16. (New section) The Department of Environmental Protection shall adopt, pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), any rules and regulations necessary to implement the provisions of this act.

17. Sections 8 and 9 of P.L.2004, c.89 (C.52:27D-10.5 and 10.6) are repealed.

18. This act shall take effect immediately.

STATEMENT

This bill would amend P.L.2004, c.89 (C.52:27D-10.2 et al.), which provides for the expediting of certain State permits in smart growth areas. Specifically, this bill would:

(1) clarify that the review of rules or regulations by the Smart Growth Ombudsman is of those rules or regulations proposed by the Departments of Environmental Protection, Transportation, and Community Affairs;

(2) establish a time frame of 45 days for the review of rules or regulations by the Smart Growth Ombudsman;

(3) add a definition of "environmentally sensitive area," and amend the definition of "smart growth area" to exclude any environmentally sensitive area identified by the DEP pursuant to rules and regulations reviewed by the Smart Growth Ombudsman and adopted in accordance with the "Administrative Procedure Act";

(4) amend the definition of "permit" to exclude permits issued by the Department of Community Affairs, and repeal sections 8 and 9 of P.L.2004, c.89 (C.52:27D-10.5 and 10.6) establishing a Division of Smart Growth within that department, since the Department of Community Affairs currently issues permits in shorter time frames than those provided in P.L.2004, c.89;

(5) specify that activities and duties of the Smart Growth Ombudsman shall be funded by revenues collected by the Department of Environmental Protection (DEP) and the Department of Transportation (DOT) under the provisions of P.L.2004, c.89;

(6) amend the definition of "permit" to provide that the term also does not include any permit or approval issued by the DEP pursuant to the "Pesticide Control Act of 1971," the "Industrial Site Recovery Act," the "Toxic Catastrophe Prevention Act," the "Solid Waste Utility Control Act," the "Spill Compensation and Control Act," the "Brownfield and Contaminated Site Remediation Act," or the "Flood Hazard Area Control Act";

(7) clarify that the definition of "permit" does not include any approval of a grant or loan by the DEP;

(8) amend the definition of "permit" as it applies to the DOT to specifically identify the four types of permits eligible for an expedited permit application review;

(9) amend the definition of "smart growth area" to mean those areas designated as Planning Area 1 (Metropolitan), Planning Area 2 (Suburban), or designated urban centers or regional centers within Planning Area 3 (Fringe);

(10) provide that "smart growth area" would not include those areas of Planning Area 2 in which a municipality has by ordinance, adopted within one year after the bill's effective date, declared that proposed projects within its boundaries shall not be eligible for expedited permit application review, and require that such ordinance is duly filed upon adoption with the Smart Growth Ombudsman, the DEP's Division of Smart Growth, and the DOT's Division of Smart Growth. In addition, a municipality with areas designated as Planning Area 2 within its boundaries that subsequently wishes to revise such an ordinance, or a municipality that wishes to allow for permits pursuant to P.L.2004, c.89 (C.52:27D-10.2 et al.) within specific portions of those areas designated as Planning Area 2 within its boundaries, shall petition the State Planning Commission for plan endorsement;

(11) require notice of each application deemed complete by the DEP for purposes of commencing a technical review to be published in the DEP Bulletin and posted on the DEP's official website;

(12) amend subsection c. of section 5 of P.L.2004, c.89 (C.13:1D-145) governing the time frames for review of expedited permit application reviews by the DEP to: require projects needing more than one permit from the DEP apply for those multiple permits at the same time; require the DEP to hold a public meeting, or a public hearing upon request, on any application, or consolidated applications, if appropriate, within 30 days after declaring a permit application technically complete; require the DEP to issue a binding decision within 15 days after this public meeting or public hearing; and require the DEP to issue its permit decision, including any necessary response to public comments, within 30 days after its decision;

(13) provide that an applicant who has requested an expedited permit application review from the DEP pursuant to section 5 of P.L.2004, c.89 (C.13:1D-145) shall not be eligible for any expedited permit mechanism pursuant to section 10 of P.L.2004, c.89 (C.13:1D-146) for that same project except as otherwise provided in the expedited permit application review;

(14) provide that the respective Divisions of Smart Growth in the DEP and the DOT are to adopt rules and regulations pursuant to the "Administrative Procedure Act" to establish the programs for the qualification and registration of professionals;

(15) provide that the fee schedules to be developed by the DEP and the DOT are to be published in the New Jersey Register prior to the effective date of the rules and regulations establishing the programs for the qualification and registration of professionals, rather than within 30 days after the effective date of P.L.2004, c.89;

(16) authorize the DEP or the DOT, as appropriate, to revoke or modify any expedited permit, general permit, or permit-by-rule upon a finding that (a) the applicant or the professional qualified and registered in accordance with the provisions of the bill provided a false statement, representation, or certification in any application, record, or other document and upon which the permit, general permit, or permit-by-rule was based, or (b) the statutory and regulatory requirements for the permit have not been met by the applicant;

(17) delete the provision contained in section 10 of P.L.2004, c.89 (C.13:1D-146) regarding minor stream encroachment permits in order to correspond with the removal of the "Flood Hazard Area Control Act" from the definition of "permit";

(18) provide that nothing in P.L.2004, c.89 shall be construed to apply to, or affect in any way, the Highlands Region, or the regional master plan or any rules or regulations adopted by the Highlands Water Protection and Planning Council pursuant to P.L.2004, c.120 (C.13:20-1 et al.), or any rules and regulations adopted by any State department or agency for the Highlands Region;

(19) provide that nothing in P.L.2004, c.89 shall be construed to apply to, or affect in any way, the Pinelands Area or the Pinelands Comprehensive Management Plan or any rules or regulations adopted by the Pinelands Commission pursuant to the "Pinelands Protection Act," and accordingly also removes growth areas in the Pinelands Area from the definition of "smart growth area";

(20) provide that the expedited permit provisions of the law shall not be construed or implemented in such a way as to jeopardize the receipt of any federal funding available to the State;

(21) specify throughout P.L.2004, c.89 where the time frames are 20 days or less, that these shall be working days; and

(22) make a technical change to section 10 of P.L.2004, c.89 by splitting that section into two parallel sections so that they may be allocated respectively to the two different titles of the statutory law in accordance with the principle departments of State government affected.

Finally, this bill also would make several other technical corrections to P.L.2004, c.89.