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New Jersey Property Owners Take Note: New Wastewater Management Plans Could Affect Your Property Rights
Authors: Thomas J. Malman, Renu A. Shevade
Publisher: Day Pitney Alert
12/2/2009
Property owners in New Jersey should be aware that county governments, together with the New Jersey Department of Environmental Protection (NJDEP), are presently preparing new wastewater management plans or "WMPs". WMPs establish sewer service areas. Only properties in sewer service areas can be served by wastewater treatment systems.
The new WMPs currently being prepared could remove many properties (vacant and partially developed) from existing sewer service areas, thereby limiting or even eliminating their development potential. While legislation has been proposed to extend the amount of time the counties have to prepare the new WMPs, property owners should be proactive in making sure their properties are not being wrongfully removed from sewer service areas. Removal from a sewer service area could preclude a property from receiving NJDEP permits and effectively prohibit any development. A brief overview of the existing rules and proposed legislation is set forth below.
The NJDEP readopted with amendments the Water Quality Management Planning Rules, N.J.A.C. 7:15-1.1 et seq. on May 21, 2008. This legislation significantly changed the NJDEP's rules regarding wastewater discharges and wastewater planning in the State. Most significantly, the new rules revoke wastewater service area designations in municipalities that fail to adopt and maintain a WMP. The rules have considerable implications since the vast majority of municipalities in New Jersey do not have valid WMPs.
Under the new rules, county governments, as designated wastewater planning agencies, were required to prepare and submit WMPs or WMP updates by April 2009 (or where the municipality assumed the responsibility from the county by July 2009). If a county or municipality failed to meet the applicable deadline, existing wastewater service areas and sewer service would be withdrawn. While counties are presently working on new WMPs, the impact of this legislation should not be underestimated. If wastewater service areas or sewer service areas are withdrawn, NJDEP will not issue permits for projects in those areas, thereby severely limiting development or potentially stopping it altogether. Grandfathering provisions, which would exempt certain projects from the draconian impact of the rules, are limited at best.
While the new WMPs are expected to be released late this year, property owners should be aware they are being prepared in conjunction with NJDEP. Pursuant to the new rules, NJDEP is requiring the counties to provide a significant amount of environmental mapping information with the WMP submissions. We are aware the NJDEP has required counties to eliminate large portions of sites currently in sewer service areas based on environmental criteria such as steep slopes, wetland buffers, threatened and endangered species, forested and flood prone areas.
There is significant potential the mapping may be inaccurate or may conflict with local mapping and planning decisions. This broad brush approach could result in a significant loss of the development potential of a site, without regard to accurate environmental criteria and without regard to historical approvals and zoning. While some counties have refused to release the draft WMP maps in their initial stages, there will be a period of public comment on their release. Property owners of undeveloped or partially undeveloped lands should attempt to review the mapping if available, or at the very least, review the mapping when it is released so that an objection can be filed promptly.
In light of the dire economic conditions that have impacted the State, legislation was introduced in the State Senate in June of this year (S-2895), recognizing the "catastrophic" negative economic impact of withdrawing wastewater service and sewer service areas. Initially, the legislation would extend the time to submit a WMP to April 7, 2011. More importantly, however, the legislation sets forth a procedure whereby a property owner whose property is removed from a wastewater or sewer service area is entitled to notice of the removal and provides a means for a property owner to comment on, and ultimately appeal, the removal to the Office of Administrative Law.
The legislation also clarifies grandfathering provisions by setting forth that properties with a preliminary or final site plan or subdivision approval, building or construction permit, general development plan approval, treatment works approval or NJPDES permit, cannot be removed from a sewer service area. In addition to environmental criteria, the legislation requires that the zoning of a property, the existing development surrounding a property, and the availability of existing infrastructure and utilities, among other criteria, be considered when making a determination on whether a property should be included in - or excluded from - a sewer service area.
Lastly, the legislation would create a Wastewater Planning Oversight Board which would have members from the building industry, environmental community, members of utilities authorities and the public, together with the NJDEP Commissioner and Smart Growth Ombudsman, to evaluate, study and review the accuracy of sewer service area mapping, data and models, among other things, and to make recommendations to WMP agencies accordingly. Overall, this pending legislation, which has been referred to the Senate Environment Committee, appears to lend clarity to the confusing wastewater planning process.
We invite property owners interested in the new Water Quality Management Planning Rules and their impact on properties in the state to contact us.
View Alert
email to your friend
Authors: Thomas J. Malman, Renu A. Shevade
Publisher: Day Pitney Alert
12/2/2009
Property owners in New Jersey should be aware that county governments, together with the New Jersey Department of Environmental Protection (NJDEP), are presently preparing new wastewater management plans or "WMPs". WMPs establish sewer service areas. Only properties in sewer service areas can be served by wastewater treatment systems.
The new WMPs currently being prepared could remove many properties (vacant and partially developed) from existing sewer service areas, thereby limiting or even eliminating their development potential. While legislation has been proposed to extend the amount of time the counties have to prepare the new WMPs, property owners should be proactive in making sure their properties are not being wrongfully removed from sewer service areas. Removal from a sewer service area could preclude a property from receiving NJDEP permits and effectively prohibit any development. A brief overview of the existing rules and proposed legislation is set forth below.
The NJDEP readopted with amendments the Water Quality Management Planning Rules, N.J.A.C. 7:15-1.1 et seq. on May 21, 2008. This legislation significantly changed the NJDEP's rules regarding wastewater discharges and wastewater planning in the State. Most significantly, the new rules revoke wastewater service area designations in municipalities that fail to adopt and maintain a WMP. The rules have considerable implications since the vast majority of municipalities in New Jersey do not have valid WMPs.
Under the new rules, county governments, as designated wastewater planning agencies, were required to prepare and submit WMPs or WMP updates by April 2009 (or where the municipality assumed the responsibility from the county by July 2009). If a county or municipality failed to meet the applicable deadline, existing wastewater service areas and sewer service would be withdrawn. While counties are presently working on new WMPs, the impact of this legislation should not be underestimated. If wastewater service areas or sewer service areas are withdrawn, NJDEP will not issue permits for projects in those areas, thereby severely limiting development or potentially stopping it altogether. Grandfathering provisions, which would exempt certain projects from the draconian impact of the rules, are limited at best.
While the new WMPs are expected to be released late this year, property owners should be aware they are being prepared in conjunction with NJDEP. Pursuant to the new rules, NJDEP is requiring the counties to provide a significant amount of environmental mapping information with the WMP submissions. We are aware the NJDEP has required counties to eliminate large portions of sites currently in sewer service areas based on environmental criteria such as steep slopes, wetland buffers, threatened and endangered species, forested and flood prone areas.
There is significant potential the mapping may be inaccurate or may conflict with local mapping and planning decisions. This broad brush approach could result in a significant loss of the development potential of a site, without regard to accurate environmental criteria and without regard to historical approvals and zoning. While some counties have refused to release the draft WMP maps in their initial stages, there will be a period of public comment on their release. Property owners of undeveloped or partially undeveloped lands should attempt to review the mapping if available, or at the very least, review the mapping when it is released so that an objection can be filed promptly.
In light of the dire economic conditions that have impacted the State, legislation was introduced in the State Senate in June of this year (S-2895), recognizing the "catastrophic" negative economic impact of withdrawing wastewater service and sewer service areas. Initially, the legislation would extend the time to submit a WMP to April 7, 2011. More importantly, however, the legislation sets forth a procedure whereby a property owner whose property is removed from a wastewater or sewer service area is entitled to notice of the removal and provides a means for a property owner to comment on, and ultimately appeal, the removal to the Office of Administrative Law.
The legislation also clarifies grandfathering provisions by setting forth that properties with a preliminary or final site plan or subdivision approval, building or construction permit, general development plan approval, treatment works approval or NJPDES permit, cannot be removed from a sewer service area. In addition to environmental criteria, the legislation requires that the zoning of a property, the existing development surrounding a property, and the availability of existing infrastructure and utilities, among other criteria, be considered when making a determination on whether a property should be included in - or excluded from - a sewer service area.
Lastly, the legislation would create a Wastewater Planning Oversight Board which would have members from the building industry, environmental community, members of utilities authorities and the public, together with the NJDEP Commissioner and Smart Growth Ombudsman, to evaluate, study and review the accuracy of sewer service area mapping, data and models, among other things, and to make recommendations to WMP agencies accordingly. Overall, this pending legislation, which has been referred to the Senate Environment Committee, appears to lend clarity to the confusing wastewater planning process.
We invite property owners interested in the new Water Quality Management Planning Rules and their impact on properties in the state to contact us.
View Alert
email to your friend