February 18, 2009

by Anne Studholme, Esquire

The rules governing disposal of sanitary sewage may be about to change again. At press time for this issue, the New Jersey Department of Environmental Protection (DEP) has proposed to amend the Water Quality Management Plans (WQMs) covering most of the state. The effect of the amendment would be to revoke sewer service in 180 of 193 municipal, county, and regional wastewater managements plans (WMPs) effective December 15, 2005. The action would bar indefinitely any further public sewer connections in those areas, even to existing sewer pipes. No new pipe could be laid. All new construction, even in areas with existing sewer lines, would have to be on septic systems. In addition, DEP proposes to further amend the affected WQM areas to change its interpretation of the statute governing state review of septic sewer systems. The effect of the change would be that any development with separate septic systems accommodating an aggregate of more than 2,000 gallons per day of sewage will require approval by the DEP in addition to approval by the local or county board of health. This would affect, for example, developments with as few as six 3-bedroom single-family houses on separate septic systems. The combined effect of these two proposed amendments would be to impose a building moratorium over much of the state. The full text of the proposals can be seen at www.nj.gov/dep/watershedmgt/wqmp_amendment_notices.htm. Every builder, and anyone with an economic interest dependent on building and development, must monitor this situation. So far, as of the date this article went to press, there has been no indication that the proposed amendments will not be enacted as drafted, despite reports that the rules' expiration period has been extended.

Summary of the Proposals

The revocation would take the form of a unilateral "amendment" to all water quality management plans (WQMs) except for those covering Cape May and Sussex Counties and ten (out of 565) individual towns --North Hanover, Beverly, Livingston, East Greenwich, Greenwich, Harrison, Mt. Arlington Borough, Carney's Point, Salem-Alloway-Quinton, and Montgomery. The proposed "amendments" could be adopted any time after the comment period closes on December 15, 2005.

The proposed revocation would not apply to sewer connections in already fully-developed communities in the state-those mapped by the State Planning Commission in State Planning Areas 1 and 2. Nor would it necessarily prohibit increased flow from buildings which are already connected to sewer pipes. The revocation would also not apply to the Highlands Preservation Area, which has its own severe restrictions on sewer connections.

In theory, developments would still be free to use on-site septic systems. This option however, will be substantially restricted or eliminated by DEP's second proposal. That proposal would, for the affected areas, change the way DEP interprets the statute requiring state approval of septic systems with a flow of more than 2,000 gallons per day. Until now, DEP has calculated sewage flow separately for each septic system. Under the new proposal, DEP will add up the flows in each development. If the total flow from the entire development exceeds 2,000 gallons per day, regardless of the land acreage available to the project, the development must secure prior approval from the DEP. Since DEP calculates that one three-bedroom single-family house produces 350 gallons per day of sanitary sewage, a development as small as six dwelling units would require prior DEP approval.

The DEP's Explanation

One component of any WQM Plan is, naturally, deciding how wastewater (i.e., sewage) will be disposed of. This component is called a wastewater management plan (WMP.) The DEP claims that by failing to keep their WMPs up-to-date, the 180 sewer planning agencies in question have made it impossible for the DEP to properly assess proposals for development. Moreover, it claims, the outdated plans do not reflect current environmental standards. The DEP maintains that without up-to-date WMPs, the cumulative environmental impact of projects may be overlooked. Therefore, all new discharges must be stopped until the plans are updated.

Until municipalities, counties, or regional sewage authorities update their WMPs and the DEP approves those updated plans, the DEP will only entertain site-specific amendments to extend public sewers into the withdrawn sewer service areas "in limited circumstances." All other amendments proposing to reinstate sewer service areas or general service areas will only be approved as a new WQM amendment based on an updated WMP.

The Exceptions

The proposal would allow the following exceptions to the revocation:

1) Infill development where total flow is less than 2,000 g.p.d. and where sanitary sewerage already extends to the lot line.

 

2) Valid pre-existing treatment works authorization permits.

3) Site-specific WQM plan amendments granted after January 11, 2000, for six years from the date of the proposed amendment's adoption.

4) Pre-existing projects as of the amendment's adoption date with both a valid local site plan or subdivision approval or local building permit, and a Land Use Regulation Program (LURP) permit if one is required.

5) Certain affordable housing projects with at least 20% of the housing set aside for persons of "low and moderate income."

The DEP will also "consider" extending public sewer for public purposes, such as public schools, hospitals, police stations, or fire stations; and projects needed to protect public health and safety, including areas of documented failing septic systems.

Action Required

If adopted, the proposals will dramatically limit development opportunities in much of the state. All those involved in the real estate industry have an important stake in preventing the state from implementing these proposals. Only the Governor or Legislature can assure that the proposals are not implemented. If efforts to lobby the Governor and Legislature are not successful and the proposals are adopted, developers would be wise to consult with knowledgeable attorneys and engineers to determine what options are open to them.

This article provides information of general interest and is not intended, and should not be used, as a substitute for consultation with legal counsel. Any questions regarding the specific issues raised in this article should be directed to Anne Studholme, Esq. (609) 734-6381 or by email: info@hillwallack.com