Article

DEP’s Proposed Water Quality Management Regulations: Legitimate Rules or a Veiled Attempt to Curtail Residential Development?
by Eric I. Abraham and Kenneth E. Meiser

The New Requirements Imposed by DEP

The proposed amendments to the existing regulations would reassign wastewater management planning responsibility to the county boards of chosen freeholders; withdraw and redesignate wastewater service areas where the applicable wastewater management plan (WMP) is not in compliance with the mandatory update schedule contained in the rules; require municipalities to adopt an ordinance to assure septic system maintenance; and require that updated WMPs address septic density in a manner that demonstrates compliance with a 2 mg/L (ppm) nitrate planning standard. The DEP’s proposed schedule is extraordinarily short. Counties must submit a revised WMP within nine months of adoption of the regulations. If this is not done because of lack of resources, lack of staff or for any other reason, each municipality within the county would have 90 days to complete the revision for the town. If there is no compliance within the 12 month period, then the DEP reserves the right to impose a sewer moratorium on the whole county with the exception of those areas within a municipality which met its 90-day deadline. The regulations totally ignore a less drastic alternative: a court order mandating the county to promptly move forward with a revised WMP.

The proposed amendments also establish standards for delineating sewer service areas to protect environmentally sensitive areas and additional standards for the review of WQM plan amendments. The latter include standards to address wastewater, water supply, nonpoint source pollution (including controls related to stormwater, riparian zones and steep slopes), and habitat of threatened and endangered species. The regulations authorize the DEP to disregard the designations within the State Plan which—in DEP’s opinion—conflict with their environmental protection policies.

Under the proposed rules, municipalities with the wastewater service designation for discharge to ground water of 2,000 gallons per day or less would have to create a mandatory septic maintenance program. This will increase the costs to homeowners with septic service and also impose a regulatory expense upon the impacted municipalities.

Implications of the Rule Amendments

If adopted, the proposed WQMP amendments would significantly impact property owners and future development in New Jersey by essentially rezoning land through sewer availability (or unavailability). A primary purpose of the proposed regulations is to compel WMP agencies to amend their WMPs in accordance with the new regulations. For those areas with a WMP that are not in compliance, all land within the WMP’s geographic boundaries not yet receiving wastewater service would be automatically re-designated as a septic area with planning flows of 2,000 GPD or less. This re-designation significantly curtails the ability of landowners and developers to develop property by requiring that the overall average lot size within a septic service area be at least five acres. The re-designation would also have a significant impact upon the local sewerage authority that would otherwise provide wastewater service to those areas, because it will be deprived of a significant source of new revenue.

These proposed regulations have significant consequences to landowners and developers: increased sprawl in areas capable of meeting the septic density standards; the risk of groundwater degradation in areas deprived of access to systemic wastewater treatment; and the elimination of formerly buildable acres from the state’s stock of developable land in “environmentally sensitive areas.”

Inconsistency with Other State Policies

The proposed regulations also work against several of the State’s important public policy directives. First, they undercut the State’s goal of increasing the availability of affordable housing. Municipalities will lose the ability to add dense housing, which is typically more affordable, when land is rendered ineligible for obtaining wastewater treatment. This is in conflict with the proposed new COAH regulations which may require inclusionary higher density zoning at the same time that that DEP is demanding lower density zoning.

Second, they completely ignore the State’s goal of meeting much of New Jersey’s housing needs through development in cities and inner-ring suburbs. While the regulations attempt to exclude numerous suburban and rural areas from access to sewer service, the regulations are totally silent on promoting redevelopment and assuring sufficient sewer capacity in redevelopment areas.

Third, they undercut the State’s goal of encouraging greater municipal fuel efficiency and sensitivity to global warming. Wastewater treatment plants are among the largest consumers of energy in New Jersey. Many of those plants are incapable of large scale reduction in energy consumption without significant capital investments. The proposed rules sharply reduce the future revenues of local and regional sewerage authorities, thereby limiting their ability to make meaningful investments in their facilities to reduce energy demands, greenhouse gas emissions and improve overall air quality.

In sum, the State’s professed goal of making realistically possible the opportunity for affordable housing and reasonable growth simply cannot be achieved if regulations such as these are adopted by the DEP. It is hoped that considerably more attention is paid to the ramifications of such rules before they are adopted.

Eric I.Abraham is a partner of the firm and a member of the Complex Litigation Practice Group. He concentrates his practice in business counseling and commercial litigation at the trial and appellate levels in both state and federal courts, representing corporations, partnerships and individuals. He is the Chairman of the Western Monmouth Utilities Authority, a post that he has held since joining the Board of Commissioners in 2000.

Kenneth E. Meiser, a Land Use Division partner, serves on the New Jersey Builders Association’s Legal Action Committee and is a past-Chair of the Board of Directors of the Land Use Law Section of the New Jersey State Bar Association. His practice is concentrated in the areas of land use applications and litigation.