State of New Jersey Proposal Would Seriously Restrict Development UPDATED
The Client Advisory below discusses controversial proposed amendments to several of New Jersey's areawide Water Quality Management Plans, which would have serious consequences for new development in the State if adopted. Since the Client Advisory went to press, important developments have occurred. Thanks to vocal opposition from local officials, trade associations, New Jersey property owners and developers, and Riker Danzig attorneys who spoke at several public hearings and gave information to local and state-wide press, Acting Governor Richard J. Codey temporarily suspended the adoption process of the proposed amendments.
Originally the proposed amendments could have been in effect as early as December 15, 2005. Acting Governor Codey has now extended the Water Quality Management Plans now in effect for six months, until May 25, 2006. This effectively defers the determination as to whether to adopt the proposed amendments to the administration of Governor-Elect Jon Corzine. In the meantime, the proposals are still pending with the New Jersey Department of Environmental Protection. We shall continue to monitor changes and potential impacts of the amendments and update you on this matter.
On October 17, 2005, the New Jersey Department of Environmental Protection ("DEP") proposed two significant amendments to ten of the state's twelve areawide Water Quality Management Plans ("WQMPs"). If enacted, the proposals would have serious consequences for new development throughout the state, and would drastically and negatively affect developers, lenders and the business community as a whole.
As a general rule, areawide WQMPs include Wastewater Management Plans ("WMPs") that regulate wastewater use in specific portions of the WQMP planning areas. New projects that might affect water quality, such as those that produce sewage, must be in compliance with the area WMPs, and must be consistent with the applicable sewer service area designation. WMPs are required to be updated every six years, but most throughout the state have not been. In fact, DEP has stated that, of the state's 193 WMPs, 180 either have never been approved or have not been renewed within six years, and therefore are deemed to be out of compliance. The list of allegedly non-compliant WMPs can be found at www.nj.gov/dep/watershedmgt/wqmps.htm. Where such WMPs are not current, DEP's proposed amendment would withdraw all sewer service area designations located in State Planning Areas 3 (Fringe), 4 (Rural) and 5 (Environmentally Sensitive).
If passed, the amendment would curtail most new development throughout significant portions of the state. Specifically, for these 180 WMP areas that are considered to be out-of-date, DEP would deny sewer permits to projects located in State Planning Areas 3, 4 and 5 that are proposing to connect to an existing sewage treatment works or that have a wastewater design capacity of 2,000 gallons per day ("gpd") or more and require a discharge permit. 2,000 gpd is the equivalent of five single-family homes. Remarkably, these projects would be denied even if sufficient capacity exists at the local wastewater treatment facility. Further, this would be the case regardless of whether excess capacity already has been paid for or committed, irrespective of local zoning and contractual obligations, and over the likely objection of local wastewater planning authorities.
While the proposed amendment contains limited exceptions for already permitted or approved projects or projects needed to protect public health and safety, it would preclude most new connections to sewer systems in these areas. Such new connections would be prohibited until a newly updated WMP was approved by DEP for that area. The WMP preparation and approval process ordinarily takes a minimum of two years, and undoubtedly would be delayed for a much longer time were DEP required to review and approve 180 WMPs at one time.
The Agency also has proposed a companion amendment to the proposed amendment. This second amendment would revoke and redesignate wastewater service area designations where sewer service is provided by individual subsurface disposal systems (i.e. septic systems), and where the applicable WMP is not in compliance. The new designation would limit wastewater discharge from these projects to 2,000 gpd (five single-family homes) until the applicable WMP is amended or revised, regardless of the number of individual discharges in the project. This second proposal is not limited to State Planning Areas 3, 4 and 5, but applies throughout the state.
DEP has scheduled public hearings concerning the proposed amendments on November 17, 21, and 30, 2005. Written comments may be submitted until December 15, 2005, although the comment period may possibly be extended to January 14, 2006 if a written request is submitted by November 16, 2005. The amendments will be effective immediately upon adoption by DEP, which could be as early as December 15, 2005.
Riker Danzig attorneys have recently been in close contact with local officials and representatives of the real estate, banking and other business communities throughout the state. All are up in arms over the devastating effect these amendments will have upon the economy of the state, and are alarmed by DEP's apparent indifference to these consequences. Many also are questioning the "stealth" nature of the proposal -- it was published without warning merely as a notice in the back of the New Jersey Register -- and its timing -- the three public hearings are being held while many concerned parties are attending the League of Municipalities conference in Atlantic City and during Thanksgiving week. Still others view it as this administration's last attempt to enact the restrictions of the "Big Map" that drew such criticism several years ago.
We share our clients' concerns and have appeared at public hearings and communicated with state officials on behalf of several of our clients. We will be monitoring this crucial issue closely and will keep our readers informed of its progress.
The proposed amendment may be found at 37 N.J.R. 4071, 4073, and the companion amendment at 37 N.J.R. 4069, 4071.