What’s the Big Stink With DEP’s New Sewer Rules?
By: Henry T. Chou, Esq.
Last summer, the New Jersey Department of Environmental Protection (NJDEP) changed its rules to reassign the responsibility of mapping public sewer service areas from local agencies to county governments. The new rules require counties to promptly approve and submit county-wide wastewater management plans (WMPs) - the plans that govern which properties may be serviced by public sewer - although NJDEP has indicated that it may grant extensions for certain counties.
What is the significance of these technical changes? If a county fails to prepare a WMP, and municipalities within the county do not subsequently prepare their own plans, NJDEP reserves the right to impose a county-wide moratorium on new sewer hookups, meaning no new development occurs until plans are in place. Sewer service area designations would only be restored when the county or municipalities adopt appropriate WMPs. At this time, it appears that four rural counties are not cooperating with NJDEP and could potentially face a county-wide moratorium on new sewer hook-ups.
While seventeen counties are “cooperating” with NJDEP, many of them are dissatisfied with the process because the WMPs were essentially pre-prepared by NJDEP with no input from the counties. NJDEP, by creating “draft” WMPs for each of the counties, made an assessment of areas it deemed appropriate for sewer service, and now the burden is on counties and municipalities to demonstrate to NJDEP that the WMPs must be adjusted to suit local development plans. Many sites zoned for development or previously approved for development have been removed from sewer service areas in the “draft” WMPs prepared by NJDEP due to unspecified “environmental” concerns.
The “draft” WMPs also propose to remove a number of sites designated for development of affordable housing from existing sewer service areas. Many of these sites are included in local housing plans that were submitted by municipalities to the New Jersey Council on Affordable Housing (COAH) in furtherance of local compliance with the “third round” affordable housing obligations assigned by COAH. Given that municipalities and COAH have a strong interest in facilitating the development of affordable housing on those sites, NJDEP’s proposal to prevent sewer service to those sites presents a conflict between the policies of sister State agencies (sigh, only in New Jersey) that must be resolved.