DEP's New Water Quality Management Rules Impose Restrictive Standards on Public Sewer and Septic Service for New Development
Published in August 2008 Issue of Builder/Architect Magazine, Greater New Jersey Edition
By Henry T. Chou, Esq.
The New Jersey Department of Environmental Protection (DEP) has adopted amendments to its regulations, scheduled for publication on July 7, 2008, that will reduce the availability of wastewater treatment service and increase the regulation of septic systems. While DEP claims that the rule amendments will improve water quality and protect environmentally sensitive areas, it appears that the only certain consequence of the rule amendments is economic hardship for counties, municipalities, property owners and developers.
The New Requirements Imposed by DEP
The amendments to the existing rules will reassign wastewater management planning responsibility from municipalities and local agencies to the county governments. This regional approach will reduce the number of sewer planning entities from approximately 200 to 21. For the first time, DEP will require mandatory updates of all wastewater management plans (WMPs) -- the plans that govern which properties may be served by public sewer. The compliance period under the rule amendments is very short. Counties must submit a revised WMP within nine months of DEP’s anticipated publication of the rule amendments on July 7, 2008. If, for any reason, a county fails to submit a revised WMP within the nine month period, each municipality within the county will have an additional 90 days to prepare their own WMPs. If there is no compliance within the 12 month period, then 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 rule amendments require counties to consider a limitation on development based upon existing zoning ordinances and build-out under those ordinances. They also require downzoning in sewer service areas where treatment capacity would be limited without an expansion of facilities. Definitions are also being changed. For example, the new definition of an “equivalent dwelling unit” (EDU) assumes that a single family home with three bedrooms and three residents will use 500 gallons per day (gpd) of wastewater capacity. This assumption is not in line with the actual average use of wastewater by a family of three in a single family home, which is closer to 250-300 gpd.
Additionally, “environmentally sensitive” land will also be removed from sewer service areas. The DEP’s definition of “environmentally sensitive” land is broad and includes 25-acre contiguous areas of wetlands, steep slopes, buffers of “Category One” waterbodies, riparian zones, habitats of threatened and endangered species and natural heritage priority sites. These areas will have to be serviced by individual on-site septic systems. While DEP claims to support the objectives of the State Development and Redevelopment Plan (SDRP), the rule amendments actually authorize DEP to disregard the designations within the SDRP which – in DEP’s opinion – conflict with its environmental policies.
The rule amendments also change the regulation of septic systems in two significant ways. First, they require municipalities to adopt ordinances regulating septic maintenance of developments that will generate a cumulative total of more than 2,000 gpd of wastewater. Second, new septic systems must meet a standard of 2 mg/l of nitrates, whereas drinking water standards remain at a lower standard of 10 mg/l.
Implications of the Rule Amendments
According to the rule amendments, if a county does not adopt a WMP within the nine month regulatory deadline and municipalities within the county do not adopt their own plans in the ensuing 90-day period, DEP has the ability to declare a moratorium on all new sewer connections in that county. All lands within the WMP’s geographic boundaries not yet receiving sewer service would be automatically re-designated as septic areas with planning flows of 2,000 gpd or less. This would significantly impede the ability to develop property by requiring average minimum lot sizes of five acres. Instead of viewing such a moratorium as punishment, certain counties and municipalities that embrace non-growth policies may purposely choose to not comply in order to stop all residential and commercial development.
While DEP states that the goal of its new septic requirements is to ensure that the density of septic systems will not degrade water quality, the practical effect of the rules is to create large lot developments that will promote sprawl and pose barriers to the extension of utilities, as well as imposing a significant expense upon homeowners with septic systems and municipalities that must create new regulatory bureaucracies. The increased use of septic systems also poses the risk of groundwater degradation in areas deprived of access to public sewer service by the rule amendments.
The new definition of the EDU has the effect of reducing the treatment capacity of sewer plants throughout the State. Instead of assuming each 3-bedroom, single family home uses 250-300 gpd of sewer capacity, treatment facilities will now have to assume that each home uses the unrealistically high number of 500 gpd. The limitation on development based on existing zoning also has the effect of stopping all future development not currently contemplated in current zoning ordinances. Additionally, the removal of “environmentally sensitive” lands from sewer service areas, per the new rule definitions, could eliminate up to 40% of New Jersey’s vacant developable land.
Inconsistency with Other State Policies
Astonishingly, DEP’s rule amendments directly conflict with several of the State’s important public policy directives. For example, they work against Governor Corzine’s pledge to increase the availability of affordable housing. When sewer service is made unavailable, municipalities will lose the ability to adopt new ordinances providing for high density affordable housing. The rule amendments also call for lower density zoning i.e., downzoning, which conflicts with the rules proposed by the New Jersey Council on Affordable Housing (COAH). Those COAH rules direct municipalities to implement “inclusionary” higher density zoning at presumptive minimum densities. In the very near future, the courts may have to address the question of whether DEP has the power to compel a municipality to downzone the very same property that could otherwise be utilized by a municipality to satisfy its affordable housing obligations. In their current form, DEP’s rule amendments could serve as a convenient tool for municipalities to evade their affordable housing obligations. The potential for conflict between the rules of two state agencies, DEP and COAH, will have to be resolved if the State is to have coherent growth policies.
Additionally, the DEP’s rule amendments completely disregard the State’s goal of providing housing opportunities through redevelopment in urban areas. While the rule amendments seek to prevent numerous suburban and rural areas from receiving public sewer service, they are utterly silent on promoting redevelopment and assuring sufficient sewer capacity in redevelopment areas.
Property owners and developers should monitor municipal, county and DEP actions closely in the following year to ascertain how properties of interest are characterized in new WMPs, and to determine whether DEP actually implements the draconian measures discussed above. The development community must also make it clear to the administration and DEP that implementation of the rules as written will devastate the State’s economy in the midst of already difficult times.