The status of Sewer Service Area ("SSA") mapping is
currently up in the air and as a result, the potential for
development in numerous areas in the State is also up in the air.
By way of brief background, the Water Pollution Control Act
("WPCA") delegates the duty of Water Quality Management
Planning ("WQMP") to the New Jersey Department of
Environmental Protection ("DEP"). In July 2008, DEP
adopted new rules regarding Wastewater Management Plans
("WMP"), the 20 year plans that define where sewer lines
can be located based upon the amount of sewage that can be handled
by wastewater treatment facilities and other such factors. These
new rules reassign responsibility for WMPs to the Counties and
provide that where a WMP is not current as of 2009, the SSA there
would be withdrawn. In 2009, the implementation date was extended
by Commissioner Martin's Administrative Order to April 2011. To
date, no WMP has been formally adopted and yet, no SSA has been
withdrawn nor has the implementation date been extended. It is
unclear when or how DEP will address this issue. So, don't be
caught off guard - know where you stand now.
The Issue
If you are a property owner or developer, you need to know
whether any property that you have an interest in is inside or
outside of the proposed SSA based upon the draft mapping. If it is
outside, the potential for developability will be seriously
impacted if the mapping gets formally adopted by the Governor.
Therefore, action should be taken now to oppose the draft mapping.
Additionally, if your property is inside the current SSA
(which will remain in effect until new mapping is formally
adopted), don't be fooled - it could, in fact, be outside the
SSA on the draft mapping and if that mapping is formally adopted,
your property could be left out forever. The long and short of it?
Speak now or (likely) forever hold your peace.
Requesting a Correction to the Mapping
The first step in knowing where you stand now is determining
whether your property is inside or outside of the proposed SSA
based upon the draft mapping. The draft mapping can be accessed on
the internet, however, it is very difficult to interpret. You may
consider consulting an expert to assist you. If your property is
outside of the proposed SSA, you may oppose the draft mapping by
submitting a Correction Request Form to DEP. Note
that the Correction Request Form requires supplemental
documentation depending upon what conditions may be present on the
property at issue (i.e. if the property is deemed an
Environmentally Sensitive Area ("ESA"), then Applications
for Wetlands Letter of Interpretation ("LOI"), Habitat
Suitability Determination ("HSD"), etc. may be
necessary). ESAs are based on a geographic information system
("GIS") and are defined as "any contiguous area of
25 acres or larger" consisting of any one or combination of
four features which, importantly, include: (1) areas
"mapped" as endangered or threatened
("T&E") wildlife species habitat and (2) wetlands.
T&E and wetlands maps have a presumption of validity and as
such, may be difficult to challenge.
If your property is excluded from a SSA because it is considered an
ESA based upon the presence of or the ability to support a T&E
habitat, then the second step in knowing where you stand now is
knowing what species take residency (or can take residency) upon
your property. You will need to consult an expert on this issue.
The designation of the property as an ESA based upon a T&E
habitat may be challenged by submitting a HSD application to DEP.
The results of animal species surveys and any other information
relevant to assessing the "suitability" of habitat of the
site for any T&E species must be submitted in the application
materials.
Exceptions and Alternatives
Certain properties that are deemed environmentally sensitive may
be subject to an exception under the applicable rules. The rules
are difficult to navigate and you should consult an environmental
attorney to advise you. If getting into the SSA is not possible, an
alternate method of disposal to be considered is an individual
septic tank. Be aware, however that (1) not all locations are
appropriate for septic based upon the groundwater capacity for
nitrates and (2) if the threshold capacity is more than 2,000
gallons per day, it would be considered a treatment plant under the
rules and hence, other conditions apply.
The Courts and SSA Mapping
Recent case law demonstrates the scrutiny that objections to
draft SSA mapping will be subjected to. In In re the Matter of
the Adoption of N.J.A.C. 7:15-5.24(b), 420 N.J. Super. 552
(App. Div. 2011), a development corporation challenged the legality
of two specific provisions of the WQMP rules: (1) prohibiting
extension of sewer service lines into ESAs; and (2) the
establishment of a maximum nitrate level for septic system
discharge. The development corporation argued that these rules were
tantamount to land use regulations which is outside of DEP's
authority. The court found that although the rules may have the
"collateral effect" of limiting the density of
development, the promulgation and enforcement of the rules is
within DEP's authority.
In Yoder v. New Jersey Department of Environmental
Protection, an unpublished Appellate Division case, the
revocation of a Coastal Area Facilities Review Act
("CAFRA") permit for the construction of one single
family home was upheld. In Yoder, the property at issue on
Cedar Run Dock Road was subject to CAFRA as it was surrounded by
wetlands, areas that comprised a wildlife refuge, and a Category
One stream. Prior to 1993, developed lots in the area had septic
tanks but failures in the tanks caused the township to propose an
amendment to the WMP conditioned on allowing a sewer line
connection only to existing development. The DEP approved the
amendments and the township applied for a CAFRA permit to construct
the sewer line. In 1993, the CAFRA permit was issued.
The Yoder lot, which had only a small shed on it, was not within
the 1993 CAFRA permit area. As such, in 2004, Yoder submitted a
CAFRA permit application to build a single family home. The
application erroneously stated that the lot was serviced by city
sewer. DEP granted the permit but then subsequently revoked it when
it was learned that the city sewer statement was false. Yoder
sought to have the lot "grandfathered" into the 1993
CAFRA permit which allowed sewer connection to existing
development. That was denied. Yoder then sought to amend the WMP to
allow connection to the sewer line for the proposed single family
home but DEP denied that application as well. Yoder appealed
arguing that DEP's decisions were arbitrary and
capricious.
The court considered several issues including (1) whether DEP's
denial of Yoder's application to allow sewer connection for the
proposed single family home to the sewer line under the 1993 CAFRA
permit was erroneous, since the 1993 CAFRA permit allowed a sewer
line connection to "existing developments" and the Yoder
lot had a shed on it; and (2) whether DEP's denial of
Yoder's application to amend the WMP was arbitrary and
capricious
The court held that the denial of the application to amend the WMP
was supported since a shed would not have been deemed
"existing development." Further, a shed does not need a
sewer line and the shed at issue did not ever have or need a septic
tank which is the only reason why the 1993 CAFRA permit was issued
in the first place. The court also held that DEP's denial of
Yoder's application to amend the WMP was not arbitrary and
capricious in that the lot would be considered
"environmentally sensitive" and as such, would not
otherwise qualify for inclusion in the SSA. The court commented
that allowing Yoder to tie into the sewer line would undoubtedly
open the door to other development in the area which, in the
cumulative, would have a negative impact on the environment.
If you need assistance wading through the alphabet soup that
comprises New Jersey's environmental laws, rules and
regulations, contact our office.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.