On January 16, 2014, Gov. Christie signed legislation (A-4531) that provides additional time for county planning agencies to submit regional water quality management (WQM) plans to the New Jersey Department of Environmental Protection (DEP), thereby avoiding the significant threat of widespread withdrawal of sewer service areas and a halt of proposed development projects throughout New Jersey. A-4531 continues the protections afforded under a 2012 law (P.L. 2011, c. 203) that was due to expire on January 17, 2014 by extending the 2012 law for another two years, until January 17, 2016. A copy of the legislation is available at http://www.njleg.state.nj.us/2012/Bills/A5000/4531_R1.HTM.
The sewer service area withdrawal issue has been lingering since 2008, when the DEP adopted regulations pursuant to the Water Quality Planning Act of 19771 requiring counties to submit to the DEP new or updated wastewater management plans meeting the requirements specified in the rules by April 7, 2009, or, where a municipality assumed responsibility for such plans from the county, by July 7, 2009. Through subsequent rule revisions, these plan submission dates were extended to April 7, 2011 and July 7, 2011. The rules provide that if a county or municipality fails to submit a new or updated wastewater management plan in compliance with the applicable deadlines sewer service area designations shall be withdrawn in those areas, except in very limited circumstances.2 By 2011, only a small fraction of the counties had submitted draft plans to the DEP. The DEP delayed the formal withdrawal of sewer service areas in noncomplying counties/municipalities, but stopped the review of any site specific amendment applications to existing wastewater management plans for development projects even if such projects were environmentally sound.
The enactment of the 2012 law prevented the DEP from withdrawing sewer service area designations for at least 180 days in order to give counties (and municipalities where applicable) time to prepare and submit new or updated wastewater management plans. Most importantly, to avoid the withdrawal of pre-existing sewer service areas, counties only had to submit the portion of their wastewater management plans identifying sewer service areas. Upon submission of the partial plan, the DEP was mandated to resume review of site specific amendments and act upon them within certain time frames as set forth in the law. The 2012 law was intended as a temporary measure that was slated to expire on January 17, 2014, by which time the DEP was expected to adopt amended regulations permanently addressing the problem.
By the end of 2013, all counties had submitted to DEP either new or updated sewer service area plans; however, no amended WQM regulations had been promulgated by the DEP. Thus, extending the 2012 law was critical to preclude a return to the environment of the 2008 DEP rules with the potential for withdrawal of sewer service areas and a freeze on the processing of project specific plan amendment applications.
A-4531 extends the sewer service withdrawal protections of the 2012 law for another two years or until the DEP adopts amended WQM rules, whichever is earlier. In addition, the law makes several changes to the application process for the wastewater management plan amendments. Some of these include: 1) limiting site specific amendments to a specific proposed development project or activity located either in an existing sewer service area or proposed new sewer service area, provided it does not require a new or updated wastewater management plan for an entire county or a new or updated municipal chapter to a county wastewater management plan; 2) increasing the maximum sewer flow rate for a site-specific amendment from 20,000 gallons per day to 50,000 gallons per day; and 3) allowing for submission of wastewater management plan amendments for inclusion of parcels up to a maximum of 100 acres in size within a sewer service area (even if deleted through a prior county plan adoption process), provided the environmental criteria of the DEP rules can be satisfied.
The new law is facing criticism from environmental groups who warn that the continued delay in implementing the 2008 DEP rules undermine comprehensive planning and will lead to degradation of the state’s waters. Some groups intend to request the Federal Environmental Protection Agency (EPA) to take over water quality planning for New Jersey and impose sanctions on the state for violating the Federal Clean Water Act, and, if the EPA refuses, they vow to file a lawsuit to force the EPA to take action against New Jersey.3
The 2012 law and its 2014 amendment only provide relief from the consequences of counties failing to meet the plan submission deadlines in the DEP rules. For the development community, the fundamental problems inherent in the DEP regulations remain, namely, the DEP’s use of the wastewater management process to dictate land use planning, which has always been a local function, and the imposition of a heavy (and costly) burden on property owners to demonstrate why their lands should not be removed from a sewer service area. Many would argue the Water Quality Planning Act was intended to encourage municipalities and counties to properly plan for new sewer infrastructure to support zoning, not to give the DEP authority to further limit development activity. Perhaps with the additional two-year reprieve on the enforcement of the sewer service area withdrawal regulation, there will be an opportunity to obtain broader statutory and regulatory reform of the WQM planning process.
Questions concerning the 2014 legislation or the WQM planning process in general may be directed to the author.
1 The Water Quality Planning Act, N.J.S.A. 58:11A-1 et seq., establishes a continuing state-wide water quality management planning process. It mandates that all projects affecting water quality must be consistent with county, area-wide and state plans, as well as the DEP WQM regulations. N.J.S.A. 58:11A-10. The act was passed to comply with the dictates of the 1972 Federal Clean Water Act in order to be eligible for federal funds to construct new sewerage treatment facilities to improve the quality of the state’s waters. The DEP WQM regulations are at N.J.A.C. 7:15-1 et seq.
2 N.J.A.C. 7:15-8.1.
3 “NJ Delay on Water Quality Could Land It in Hot Water with Federal EPA,” NJSpotlight.com, January 17, 2014. Available at http://www.njspotlight.com/stories/14/01/16/nj-delay-on-water-quality-could-land-it-in-hot-water-with-federal-epa/.
Thomas M. Letizia
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.