Sewer Service Area Legislation Passes

01.18.2012

On January 9, 2012, the New Jersey Legislature passed S3156/A4335 concerning the Water Quality Management Plan (“WQMP”) rules adopted by the Department of Environmental Protection (“DEP”) in 2008. The bill extends the deadline for counties to prepare and submit a wastewater management plan to DEP and maintain, during the extension period, the validity of the existing sewer service areas until the new plans are approved. The bill was signed into law by Governor Christie on January 17, 2012. The WQMP rules required counties to submit a wastewater management plan to the DEP by April 7, 2009. The rules required the plans address both areas served by sewers and areas served by septic systems. The rules preclude the plans from including environmentally sensitive areas that are not currently served by sewers in a sewer service area. If a county did not submit a plan by the deadline, DEP had the authority to remove environmentally sensitive areas from existing sewer service areas. Administrative Order 2010-03, issued by DEP Commissioner Martin, extended the deadline for submission until April 7, 2011. Even with the extension, only one county completed its revised wastewater management plan. Under the bill, counties have 180 days, which may be extended by the Commissioner, to submit to the DEP partial plans for sewer service areas. It is up to the discretion of the county whether to include a plan for areas served by septic systems. The plans that are submitted are required to comply with the 2008 WQMP rules. The only exception to this is that DEP is authorized to approve inclusion of land within a sewer service area notwithstanding that existing treatment may not have the assured capacity to treat wastewater from that land. If the county submits the plan by the deadline, then the existing sewer service areas will remain in effect until DEP adopts the new plan or portion thereof. Since the legislation requires the submitted plan to be consistent with the 2008 WQMP rules, there remains a significant risk that lands that are currently in a sewer service area will be removed from those areas in the submitted plans. For properties that are currently in a sewer service area, developers and landowners should monitor what is being done by their county and advocate that their county submit a plan that keeps their property in a sewer service area prior to the deadline. For properties that are not currently in a sewer service area, the bill sets forth a process for site specific amendments to a wastewater management plan or water quality management plan. Site specific amendments are defined as “an amendment to a wastewater management plan or a water quality management plan which permits a proposed development project or activity having a wastewater planning flow of less than 20,000 gallons per day, or being less than 100 acres in size, to become consistent with the applicable wastewater management plan or water quality management plan. A site specific amendment shall not include amendments or changes to the Statewide Water Quality Management Plan or changes to incorporate a total maximum daily load.” The bill sets forth specific time periods in which DEP must act after receiving a site specific amendment. In most situations, DEP will be required to act on the site specific amendment within 240 days of receipt of a completed application. For more information, contact William F. Harrison at wharrison@genovaburns.com.