2020 Permit Extension Act & Registration Process

24 September 2020

On July 1, 2020, Governor Murphy signed the Permit Extension Act of 2020 (PEA) into law. The PEA suspends the running of certain approvals that expire during the period in which the COVID-19 Public Health Emergency is in effect and generally extends this tolling six months beyond the end of the Public Health Emergency. If you intend to rely on the PEA to extend your project approvals, here are some considerations that we found important to other clients:

  1. The PEA extends certain, not all approvals. Federal approvals delegated to New Jersey may not be extended, e.g. Freshwater Wetland approvals and NJPDES approvals. However because NJDEP Freshwater Wetland Letter of Interpretation and Transition Area approvals are not Federal delegated approvals, they should be extended by the PEA. Consequently, not all approvals for a particular project may be extended.
     
  2. Like the 2008 Permit Extension Act, “work” must have “commenced” for NJDEP Flood Hazard Area approvals to be extended.  
     
  3. Certain approvals otherwise eligible for extension by normal processes may be extended by the PEA. The extensions afforded by normal processes are certain and may well exceed the extension granted by the PEA. The length of the extension granted by the PEA is uncertain and depends on the duration of the Public Health Emergency.
     
  4. For some regulatory programs, e.g. NJDEP Flood Hazard Area Control Act, the rules in effect at the time an extension by normal processes is made will govern the extension request. It may be possible that the PEA extends an approval beyond the effective date of new requirements and when an extension by normal processes is made, the extension is subject to the new requirements. For example, a NJDEP Flood Hazard Permit could be extended by the PEA to beyond March 2, 2021, the effective date of the amended stormwater management rules and consequently subject to the new stormwater management requirements when an additional extension by normal process is requested. Please refer to our Stormwater Management Rule Client Advisory Bulletin for information on that rule amendment.
     
  5. The PEA has a “registration” requirement and process. State agencies are to provide a notice of tolling permits and approvals in the New Jersey Register within 30 days of the effective date of the PEA and the permit or approval must then be registered within 30 days of the notice with the State department.

Public Notices of the registration process for approvals eligible for extension under the 2020 Permit Extension Act (PEA) were issued on September 8, 2020. Links to these notices can be found below. 

NJDEP Notice
NJDCA Notice
Pinelands Commission Notice
NJDOT Notice

The NJDEP is the agency responsible for maintaining the list of approvals extended by the PEA. The NJDEP Public Notice includes a link to the registration form at the end of the second paragraph. The link to the form can also be found here.

Note that the NJDOT requires that NJDOT approvals extended by the PEA also be registered with the NJDOT. Please refer to the NJDOT Public Notice for details.

In order for an approval to be extended by the PEA it must be registered by October 8, 2020

VNHA recommends that all eligible approvals be registered to benefit from the tolling of the approval offered by the PEA to maximize the duration of the approval. It is also recommended that a record of filing the registration is maintained.

VNHA can help. Land use permitting, very often not straight forward, is further complicated as a result of COVID 19. If you have any questions regarding the PEA or would like assistance with understanding the approval status of your projects or registering your approvals, please feel free to contact John Ryder, Sarah Wueschinski, or your VNHA Project Manager.