Bulletin Board Magazine [Volume 2 - 2025]

Additionally, NJDEP proposes to amend the freshwater wetlands mitigation hierarchy to prioritize the use of mitigation banks for all disturbances, regardless of size, aligning the State’s approach with federal standards. The proposal will, however, eliminate the single-family monetary contribution option. Under current regulations, single family property owners whose project requires mitigation under a general permit may qualify for a significantly reduced monetary contribution amount ($47,600/acre) compared to larger projects ($377,000/acre). Over the years this has helped to balance wetland mitigation costs relative to the smaller scale of a single family home development. The elimination of the singly-family home contribution option will result in significant cost burdens for single family home projects that require wetland mitigation. For Flood Hazard, major development projects proposed along C-1 waterways would be allowed to mitigate using a mitigation bank, among other mitigation options, if mitigation along the same water or upstream is not feasible. The proposed amendments were published in the New Jersey Register on March 17, 2025, and, as of the date of this writing, the proposal is pending adoption. REMEDIATION STATUTE OF LIMITATIONS NJDEP v. Desai In New Jersey Dep't of Env't Prot. v. Desai, A-0140-23 (App. Div. Apr. 25, 2025), the Appellate Division reversed and remanded the trial court’s decision to dismiss as untimely a complaint brought by the New Jersey Department of Environmental Protection’s (“NJDEP”) nearly 30 years after entering into a consent agreement for the remediation of a contaminated site in Camden, New Jersey. Defendants are former owners of the property, which was used by their company International Customer Corporation (“ICC”) for a solvent repacking business. The closure of ICC in 1987 triggered obligations under the Environmental Cleanup Responsibility Act (ECRA), the precursor to present-day ISRA. The parties entered into multiple Memorandums of Understanding, but the remediation stalled. In 2010, NJDEP informed Defendants of their obligations under the Site Remediation Reform Act (SRRA) to hire a licensed site remediation professional. Defendants thereafter took no steps to comply with their statutory obligations. In April 2023, NJDEP filed a complaint to compel remediation of the Camden site and sought damages for costs incurred by NJDEP. Defendants filed a motion to dismiss on the grounds that the action was untimely based on the statute of limitation in N.J.S.A. 58:10B-17.1(a)(1), which requires actions to be filed within three (3) years after the cause of action accrues. The statute further provides that the cause of action shall not be deemed to have accrued “until the contaminated site is remediated,” or January 1, 2002, whichever is later. The decision turned on the issue of when the cause of action accrued. Defendants argued NJDEP’s cause of action accrued when defendants ceased the remediation process, even though the remediation was not completed. Because defendants’ remediation efforts stopped before January 1, 2002, the earliest accrual date permitted by the statute, defendants argued the three-year statute of limitations on NJDEP’s claims began on January 1, 2002 and expired on January 1, 2005.

Continued

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