New DEP Sewer Service Area Maps Spell Disaster for Planning, Economic Growth and Development

July 6th, 2009 | Posted by: Christopher DeGrezia 1| comments:

Sewer Service Area One of the most significant obstacles to economic growth and development in New Jersey has gone largely unnoticed and if not properly addressed, could jeopardize commercial, residential and industrial growth, and undermine New Jersey’s hope for future economic stability and vitality.  Amendments to the Water Quality Management Planning Rules in 2008 have resulted in an overall shift in how water resource planning is implemented throughout the state.  The new rules are designed to shape development patterns in New Jersey through the designation of sewer and nonsewer waste water disposal areas.  The serious impact of the rules is only now coming to light with the Department of Environmental Protection’s (DEP) introduction of a proposed, dramatically revised Sewer Service Area Maps.  The new maps, currently in draft form, are substantially different than the current maps, removing many undeveloped or partially developed properties from current designations as Sewer Service Areas.   The bottom line is that many properties that are not fully developed, such as golf courses, educational campuses, industrial parks and corporate campuses that are currently within a Sewer Service Area would be redesignated to a non-Sewer Service Area, drastically devaluing the property, potentially impacting financing and effectively eliminating future development options.  Many of the map changes directly conflict with municipal zoning ordinances, master plans and even approved General Development Plans, removing key components that will have a critical impact on a municipality’s fiscal health and in some cases drive N.J. corporations that have purchased sufficient land for future growth around existing facilities to look to relocate outside of the State. 

The removal of property from the Sewer Service Area will have a catastrophic effect on the value of the property and its development potential.  It would negatively impact municipal planning by removing areas designated for development from becoming a productive asset.  Sewer infrastructure designed and built to accommodate planned growth will be left underutilized and become a wasted asset, and anticipated connection fees will be gone.  If the proposed development falls outside of the Sewer Service Area, development is limited to on-site disposal systems that, in the aggregate, generate 2,000 gallons per day or less (assuming the system complies with a new two parts per million nitrate standard).  This draconian standard is equivalent to six single family houses – and is regardless of the number of acres of the tract.

Under the new Water Quality Management Plan Rules, the DEP, for the first time, has a compliance mechanism to require periodic updates of wastewater management plans.  A county’s failure to comply will result in the withdrawal of their Sewer Service Area designation until an updated plan is adopted.  The DEP has taken the first step in providing Amended Sewer Service Area maps to the counties for review and comment. (Based on the DEP’s website, the  following counties are not developing their own Maps:  Bergen, Burlington, Passaic, Union and Warren.  Their maps will be developed and distributed by the DEP.)  These maps are created based on the DEP’s Geographic Information System data layers and ostensibly were intended to focus on directing growth away from environmentally sensitive areas such as wetlands, forests and critical wildlife habitats.  Unfortunately, the data is not site specific and as a result, not necessarily correct and the maps do not reflect local master plans or protect projects that have already obtained local board approvals.  The maps actually divide existing sewer service areas, removing undeveloped portions of lots around corporate offices, within universities and even public schools.  These arbitrary divisions within lots will prevent future expansions and materially devalue property.

Although the goal of protecting and improving water quality is praiseworthy, the use of the proposed Sewer Service Area maps have the potential of eliminating economic growth and development in appropriate areas.  The Amended Sewer Service Area maps have been drawn too aggressively, excluding many areas from sewer service that are prime and appropriate for development.  The move is coincidentally reminiscent of the “Big Red Map,” published by the DEP in 2003 in order to make the state’s environmental regulatory standards transparent to developer’s and municipalities in the apparent effort to stop development.  The Big Red Map was eventually abandoned, in part due to the controversy it created.  The proposed Sewer Service Area Maps, however, have the potential to be even more harmful to New Jersey’s future. 

The new Sewer Service Area maps were distributed to counties and municipalities for review in the fall of 2008.  Municipalities are now in the process of providing comments to the county concerning specific sites.  Each county, with the assistance of the DEP, is in the process of reviewing the comments and, where appropriate, revising the Sewer Service Area to include sites that were incorrectly excluded.  It is imperative that individuals and municipalities address the sewer service issues before the maps are finalized.  While there will be a public comment period before the new maps have been officially adopted, intervention prior to that time would be advisable since future changes are likely to be extremely difficult and, after adoption, probably impossible.  

Everyone with an interest in real property should, at a minimum, review the new Server Service Area Map and compare it to the current map, to determine if all or a portion of a property has been removed from the Sewer Service Area designation.  In a number of cases that I have reviewed (including corporate campuses, golf courses, municipal parks, industrial parks and educational properties), the undeveloped portions of these properties, currently within the Sewer Service Area, would be removed based on the new map.  In some cases, the DEP drew the Sewer Service Area around existing buildings and excluded the remainder of the properties.  For example, in one case, the treatment of a golf course under the new map would essentially prohibit an expansion or relocation of its clubhouse or any other improvements requiring waste disposal in excess of 2,000 gallons per day in the undeveloped areas.  The re-designation would virtually eliminate future residential development of the golf course property and could undermine value needed for periodic financing.  Similarly, a corporation with some foresight that purchased more land then it initial needed in order to accommodate future expansion and growth could now find that the undeveloped portion of its property is now carved out of the Sewer Service Area,  removing any expansion options.  

Property owners will need to craft an argument to the DEP and county to support inclusion of specific property in the Sewer Service Area, based on the Water Quality Management Planning Rules.  Municipalities interested in protecting future ratables, zoning plans and infrastructure investments will also need to take aggressive action.  There is a small window of opportunity that property owners and municipalities cannot afford to miss.

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One Response to “New DEP Sewer Service Area Maps Spell Disaster for Planning, Economic Growth and Development”

  • Abigail Fair says:

    Sewer Service – Amended Wastewater Management Plan Regulations

    Mr. DeGrezia’s posting on DEP’s new Wastewater Management Plan rules provides a wake-up call to municipalities. This is commendable. However, the alarmist tone of the posting is not warranted. Municipalities or sewer authorities should have been compiling wastewater management plans since 1990. These WMPs must amend regional or Areawide Water Quality Management Plans established under Section 208 of the Clean Water Act and must demonstrate how a municipality will take care of the wastewater needs emanating from its master plan and zoning.

    Unfortunately, when the areawide plans were completed in the 1970’s, towns and sewer authorities drew very large sewer service areas that bore no relationship to practical and environmental constraints. No information has been available regarding where actual sewer pipes exist. The new regulations require that information.

    The other regulation requirements are not new. In 2000, Governor Whitman issued Executive Order (EO) 109. It requires that WMPs examine alternatives, depletive and consumptive water use, pollutant loading and conducting an environmental build-out analysis to take into account the constraints to development from the presence of environmentally sensitive areas. DEP has been implementing EO 109 for several years. The amended regulations incorporate the EO requirements and were adopted after public hearings and a long public comment period. DEP encouraged counties to take over the WMP responsibility, but provided for towns to do their own.

    To facilitate the process, DEP provided maps to the counties showing environmental constraints identified with data the state has been developing. This data is used in other DEP permit programs – wetlands, flood hazard area protection – and has been recognized as the best available. The process is iterative so counties have reached out to municipalities to verify and correct data sent by DEP. Where counties refuse to take the lead, DEP works with the municipality. Municipalities need to make sure residents have a chance to participate so they can give the towns input.

    The Rules Were Not a Surprise
    The WMP rules were originally adopted in 1990 with a deadline for compliance of late 1994. Extensive stakeholder meetings also spotlighted wastewater plan needs and were held during the Whitman administration to examine and recommend changes to the rules. A change in administration stopped that effort.

    Because of very substantial non-compliance with the 1990 rule WMP deadline, in October 2005, 13 years after the WMP deadlines, Commissioner Campbell of the DEP issued a public notice in the NJ Register announcing public hearings on rescinding sewer service areas for out-of-date or non-submitted WMPs – covering most of New Jersey. There was such public outcry at the public hearings that the proposal was withdrawn. However, nearly all testifiers acknowledged that the action was justified, but that they needed time to comply. The rules were proposed in 2008, three years after Commissioner Bradley’s public notice.

    New Jersey needs the current WMP regulations implemented to protect water resources, to give predictability to building interests and municipalities, and to prevent escalating costs from sprawl development. Fiscal impact studies conclusively prove that sprawl development into the countryside is expensive. It’s expensive as we pay for construction of new or expanded roads, water supply, traffic congestion. The public ultimately pays the bill.

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