• Development May Go Down the Drain
  • November 28, 2005 | Authors: Mark A. Solomon; Thomas M. Letizia; Andrea M. David
  • Law Firm: Pepper Hamilton LLP - Princeton Office
  • NJDEP sewer proposals will inhibit growth

    Two recently published proposals to amend 10 of New Jersey's 12 Area Wide Water Quality Management Plans would dramatically inhibit future development in the state -- even in areas planned for sewer service.

    Proposed by the New Jersey Department of Environmental Protection (NJDEP), the amendments address sewer service areas and the installation of on-site septic systems. If adopted, the amendments will be effective retroactively to October 17, 2005. The scheduled public hearings on the proposals are:

    • Morris Township - November 17, 2005
    • Mansfield Township - November 21, 2005
    • Galloway Township - November 31, 2005

    Written comments can be submitted to NJDEP until December 15, 2005.

    Sewer Service Areas

    Under existing regulations, updated wastewater management plans must be submitted to the NJDEP every six years. NJDEP statistics reveal that only 13 of New Jersey's 193 wastewater management planning areas have adopted and maintained a current plan. As a result, NJDEP proposes to withdraw sewer service area designations in regions identified as Planning Areas 3, 4 and 5 in the State Plan which have not adopted a current wastewater management plan -- regardless of zoning or sewer treatment plant capacity. The proposal does not affect the sewer service in areas with State Plan designations of Planning Area 1, 2 or Center.

    Affected areas will be designated as a "Service Area for Wastewater Facilities with Planning Flows of Less Than 2,000 Gallons Per Day Which Discharge to Groundwater." Such areas will be required to be serviced by treatment that discharges to groundwater, such as a septic system.

    NJDEP has listed some exceptions to this amendment: infill development in limited circumstances; projects with valid treatment works approvals; projects that received a site specific water quality management plan amendment or revision after 2000; projects that received local site plan approval, subdivision approval or a construction permit together with a Land Use Regulation Program Permit or NJDEP permit for a discharge to ground water prior to October 17, 2005; and certain affordable housing projects. The sewer service area withdrawal will not apply in areas where sewers are actually installed and the wastewater generating structures are currently connected to the collection and treatment system.

    According to the proposal, in a limited number of circumstances NJDEP will consider amendments to wastewater management plans to allow public sewers in the withdrawn areas. These include public purpose projects such as public schools, hospitals and police or fire infrastructure; certain affordable housing projects; and when necessary to protect public health and safety.

    Septic System Service Areas

    Additionally, the NJDEP proposes to change how it determines whether a project to be served by on-site septic systems can be designated as a "Service Area for Wastewater Facilities with Planning Flows of Less than 2,000 Gallons Per Day Which Discharge to Ground Water." Currently, this determination is based on the individual discharge volume, regardless of how many dischargers are included in the project.

    Under NJDEP's proposed amendment, wastewater flow for an entire project will be used to determine whether the amount exceeds the 2,000-gallon-per day threshold. A project which cumulatively exceeds 2,000 gallons per day automatically will be deemed inconsistent and would require a plan amendment before the NJDEP will issue permits. The result: Any project of more than five homes on septic systems, based on a design flow of 350 gallons per day for a single-family home, will no longer be approved.

    According to the proposal, the amendment will allow NJDEP to assess the project's water and environmental resource impacts. What additional environmental analyses, if any, will be required is unclear at present. Such analyses could include threatened and endangered species, water supply, non-point source pollution and riparian corridors.

    Projects with valid NJDEP approval for the construction of 50 or more realty improvements, and projects with local approvals or permits and a NJDEP Land Use Regulation Permit (if required), are excepted from the new rule. This exemption, however, lasts only until one of the approvals expires.

    If adopted, these amendments could severely limit a developer's ability to construct in areas previously zoned for growth. The amendments' impact should be reviewed as part of any proposed acquisition of property for development purposes.