January 1, 1900

by Kenneth E. Meiser

It is no secret that lack of buildable land in New Jersey is becoming the most critical problem that developers face. The State has committed itself to a massive land acquisition program. The Governor, through Executive Order No. 109, has sent yet another message to the Department of Environmental Protection (DEP). The apparent goal is further reducing the supply of developable land. Although Executive Order No. 109 is not really a new law, nor a new regulation, it is, at least on its face, a demand for stricter DEP enforcement of existing laws.

The Executive Order first declares that New Jersey's water resources have been negatively impacted by unprecedented development and "sprawl" over the past 30 years. It warns that the need to further serve the projected 1,000,000 new residents of New Jersey over the next 20 years threatens to seriously degrade water quality. It even blames the recent droughts and flooding on the demands placed on the environment by recent development. Apparently, it is felt that it is not global warming, but the reduction in farms and open space, that has caused such problems.

Enforce WQMP Rules

Thus, the Governor seeks water resource management through a "holistic and comprehensive analysis of water resources issues," with the express purpose of a restoration, maintenance and preservation of the quality of the waters of the state. Apparently, the Governor believes that the DEP has failed to demonstrate sufficient concern for the quality of the state's waters.

The Executive Order therefore directs DEP to enforce existing Water Quality Management Planning rules. Those rules now require meaningful analysis of alternatives prior to a decision on the approval of a wastewater management plan amendment. An existing DEP regulation, N.J.A.C. 7:15-5.18, contains four pages of criteria that DEP must use in evaluating wastewater management plan amendments. The Governor's Executive Order adds nothing substantive to these regulations but cautions DEP that it must strictly enforce the existing regulations.

Alternative Analysis

Specifically, DEP is directed to determine, consistent with its existing authority, what additional "alternative analysis" must be conducted prior to the rendering of a final decision on an application. This must involve a consideration of depletive and consumptive water use, detailed land use, environmental build-out and pollutant loading. All of these are factors that DEP is supposed to consider under the existing regulations. However, the message seems to be that the DEP should apply its regulations in a manner which imposes the most rigorous burden upon an applicant, and which will require the applicant to engage in expensive testing requirements.

The bottom-line appears to be that, when in doubt and where there is a possible basis for a denial, DEP should deny the application. As of late February, it appears that DEP has received the message. DEP has told various organizations that it is not sure precisely how it will interpret the Executive Order, or what the Order means, but that it will be very carefully scrutinizing all applications. The foreseeable result will be more delays, denials and, inevitably, litigation.

Kenneth E. Meiser, a Land Use Division partner, serves on the New Jersey Builders Association's Legal Action Committee and is Vice-President of the 450-member Land Use Section of the New Jersey State Bar Association. His practice is concentrated in the areas of land use applications and litigation.