State of New Jersey
Executive Order #45

Acting Governor Richard J. Codey
WHEREAS, on July 9, 2004, legislation providing for the implementation of the State Development and Redevelopment Plan (March 1, 2001) through, inter alia, the establishment of a Smart Growth Ombudsman in the Department of Community Affairs ("DCA") and the creation of a Division of Smart Growth in each of the Departments of Environmental Protection ("DEP"), Transportation ("DOT") and DCA, as well as providing for the expediting of certain State permits in designated smart growth areas and other regulatory reforms, was signed into law as P.L.2004, c.89; and

WHEREAS, P.L.2004, c.89 required DCA, DEP and DOT each to develop a program for the qualification and registration of professionals within 120 days of its enactment; and

WHEREAS, a primary purpose of P.L.2004, c.89 was to provide a comprehensive and transparent permitting system with expedited timetables in smart growth areas; and

WHEREAS, P.L.2004, c.89 authorized DEP, DOT and DCA each to adopt rules and regulations in accordance with the New Jersey Administrative Procedure Act, P.L.1968, c.410 (C. 52:14B-1 et seq.) (APA) to implement the requirements of P.L.2004, c.89; and

WHEREAS, in order to effectuate the purposes of P.L.2004, c.89, a large number of separate rulemaking proposals must be adopted by the affected departments, requiring a high level of coordination among those departments, their Directors of Smart Growth, the Smart Growth Ombudsman, and interested members of the public; and

WHEREAS, P.L.2004, c.89 expressly provided that its provisions should not "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;" and

WHEREAS, the State of New Jersey presently receives considerable federal funding in grants and loans to implement federal laws and programs, and it is in the best interests of the State to ensure the continuation of this important partnership; and

WHEREAS, representatives of the federal government have raised concerns regarding the effects of P.L.2004, c.89 on federal programs; and

WHEREAS, it is imperative that DEP, DOT and DCA carefully develop rules to fully implement P.L.2004, c.89 while simultaneously ensuring the continuation of all federal programs and financial arrangements, and the continuation of adequate opportunities for public notice and participation in the permitting process; and

WHEREAS, in recognition of these facts, former Governor McGreevey issued Executive Order No. 140 (2004), requiring the affected departments to utilize the pre-proposal process for administrative rulemaking pursuant to the APA to ensure full public participation, thoroughness and due deliberation in rulemaking; and

WHEREAS, the pre-proposal process resulted in the submission of several comments that raised legitimate issues warranting careful deliberation by the State departments before they engage in formal rulemaking; and

WHEREAS, Executive Order No. 140 (2004) further directed the DEP to consider measures for conforming implementation of P.L.2004, c.89 with applicable federal standards and protections to ensure that the proposed State regulations do not, directly or indirectly, modify any requirement of law that is necessary to retain federal delegation to, or assumption by, the State of the authority to implement afederal law or program, including the Coastal Permit Program Rules (including the Waterfront Development Act, Wetlands Act of 1970, Freshwater Wetlands Protection Act, Flood Hazard Area Control Act, Endangered Non-game Species Conservation Act); Freshwater Wetlands Protection Act; Toxic Catastrophe Prevention Act; Spill Compensation Control Act; Transportation of Hazardous Liquids Act; Industrial Establishments Act; New Jersey Environmental Infrastructure Trust Act; New Jersey Safe Drinking Water Act; New Jersey Water Pollution Control Act; Water Supply Bond Act; Wastewater Treatment Bond Act of 1985; Water Quality Management Planning Act; Industrial Site Recovery Act; Underground Storage of Hazardous Substance Act; and Brownfields and Contaminated Site Remediation Act; and

WHEREAS, outstanding legal issues remain concerning the impact, if any, of DEP's potential regulatory actions to implement P.L.2004, c.89 upon federally delegated programs;

NOW, THEREFORE, I, RICHARD J. CODEY, Acting Governor of the State of New Jersey, by virtue of the authority vested in me by the Constitution and by the Statutes of this State, hereby ORDER and DIRECT as follows:

  1. Until such time as the federal government and the DEP reach agreement concerning the impact, if any, of DEP's proposed rules implementing P.L.2004, c.89 upon the ability of DEP to administer the federal programs described above, no expedited permit, permit-by-rule, or general permit under P.L.2004, c.89 may be accepted for review by any State department or division.

  2. In recognition of the supremacy of federal law, once agreement is reached between the federal government and the affected departments, DEP, DOT and DCA shall conform their proposed rules implementing the expedited permitting provisions of P.L.2004, c.89, to the extent those provisions are applicable, with the federal agencies' standards and protections to ensure that such regulations do not, directly or indirectly, 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. Thereafter, each affected department shall provide for pre-publication review of the proposed final regulations by interested parties as permitted by the Administrative Procedure Act, N.J.S.A. 52:14B-4(e).

  3. To ensure further consistency and coordination in the implementation process, in addition to the foregoing, no proposed rule for the implementation of P.L.2004, c.89 shall be published by any department until such time as all rules necessary and desirable for the implementation of P.L.2004, c.89 are approved and reviewed as described above, at which time all departments shall submit all such rules for simultaneous publication.

  4. This Order shall take effect immediately.
GIVEN, under my hand and seal this 12th day
of July in the Year of Our Lord, Two Thousand
and Five, and of the Independence of the United
States, the Two Hundred and Thirtieth.

/s/ Richard J. Codey

Acting Governor



/s/ Paul T. Fader

Chief Counsel to the Governor