Appellate Division Ruling Reinforces Key Provisions of NJDEP’s Water Quality Management Planning Rules

November 8th, 2011 | Posted by: Christopher DeGrezia 0| comments:

DSC_0133By Michael A. Smith

On June 29, 2011, the Appellate Division of the New Jersey Superior Court released its opinion In the Matter of the Adoption of N.J.A.C. 7:15-5.24(b) and N.J.A.C. 7:15-5.25(e), upholding certain key provisions of the New Jersey Department of Environmental Protection’s Water Quality Management Planning Rules (WQMP Rules), N.J.A.C. 7:15 et seq. (namely, a provision that prohibits the extension of sanitary sewer lines in environmentally sensitive areas, and a provision that sets a maximum nitrate level for septic system discharge).  In so holding, the court rejected a developer’s argument that the WQMP Rules constitute unauthorized land use regulation, in excess of NJDEP’s authority. 

Among other things, this ruling provides “teeth” to NJDEP’s pending sewer service area revision process, i.e., NJDEP’s efforts to prohibit the building of new sanitary sewer lines based on the presence of environmentally sensitive features (including threatened and endangered species habitat, Natural Heritage Priority Sites, Category One riparian zones and wetlands).  

Background     
The WQMP Rules were adopted by NJDEP in July 2008.  Those regulations require updates to the existing wastewater management plans (WMPs), which are expected to involve substantial changes to the current sewer service area (SSA) — properties that are within the current SSA could be removed from the SSA as part of NJDEP’s WMP revision process.  WMPs are legally binding documents that govern where new sanitary sewer lines can be built.  For a sewer line to be extended into a property, it must be included within the SSA in the area wide WMP.  Properties that fall outside the SSA can only be served by septic systems.  For additional background regarding NJDEP’s SSA revision process, please click here. 

The original submission deadline for the revised WMPs was April 7, 2009; however, NJDEP approved several extensions, including with its March 24, 2010 issuance of Administrative Order No. 2010-03 — a measure that extended the deadline until April 7, 2011.  However, that extended deadline has now expired, and NJDEP has not offered additional relief.  Pursuant to the WQMP Rules, NJDEP can now proceed to withdraw existing SSA designations.  Accordingly, owners should act quickly to evaluate any proposed changes to the existing SSA. 

Follow-up Action   
 The Appellate Division’s ruling reinforces the notion that property owners should not be complacent about the pending SSA revision process, and should definitely not assume their continued inclusion in the SSA.  In fact, we have identified situations where NJDEP has proposed to remove from the SSA parcels which have zoning and/or site plan approvals for the development of several hundred thousand square feet of industrial and commercial floor area.     

Owners should, at the very least, review NJDEP’s preliminary draft SSA mapping to determine its impact on their property.  If necessary, owners should capitalize on comment opportunities offered by NJDEP and/or the applicable wastewater management planning entity.  Many (but not all) of the draft SSA maps are available online (see links below).  Moreover, NJDEP’s website contains a County WMP Status Report  tracking the SSA revision process on a State-wide basis. 

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