The Appellate Division upholds the Department of Environmental Protection’s authority to establish the Waiver Rule. See the decision.
The Appellate Division recognized that the legislature’s grant of broad rulemaking authority to DEP includes an “implicit” authority to waive its rules and that such authority does not need to be “explicit”. And, while the Court declared DEP’s guidance documents for submitting waiver applications as de facto rulemaking in violation of the Administrative Procedures Act, the Court determined that the Waiver Rule itself contains enough details about the waiver process so that the invalidation of the guidance documents is not fatal to DEP’s implementation of the Waiver Rule.
We will continue to track the Waiver Rule as further details emerge.