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In re Adopted Amendments: N.J.A.C. 7:15-8

March 18, 2002

IN RE ADOPTED AMENDMENTS: N.J.A.C. 7:15-8


On appeal from the Department of Environmental Protection, GPS 20-00-06/62

Before Judges Conley, A. A. Rodríguez and Lisa.

The opinion of the court was delivered by: Conley, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 6, 2002

Here is how the appellant presents the procedural context of this appeal:

On July 3, 2000, the Department of Environmental Protection ("DEP") proposed "to repeal the Water Quality Management Planning Rules at N.J.A.C. 7:15 and replace them with new Water Quality and Watershed Management rules at the same citation. . . . " 32 N.J.R. 2285(a), 2286 (July 3, 2000). The proposal filled 78 pages of doubled column, fine print in the New Jersey Register, of which 35 pages represented the text of the proposed new rules and the remainder [of] DEP's explanation and analysis of its proposal. 32 N.J.R. 2285 to 2363. . . .

Following the public hearings and the receipt of written comments, DEP decided that rather than repeal the existing rules, as it had proposed, it would instead "amend [the proposal]." DEP did this by taking one small fraction of the proposed new rules (filling little more than one half page in the New Jersey Register), [and] modifying that fragment, and adopting this as an "amendment" to the existing rules that had been proposed for repeal. 33 N.J.R. 697(a) (February 20, 2001). [Emphasis added.]

In our view, this is an accurate depiction. The proposed repeal of DEP's existing "Water Quality Management Planning Rules" (WQM) and replacement with an entirely new and broadly more comprehensive "Water Quality and Watershed Management Rules" was described by DEP in the noticed proposal as a "sea change" in clean water policy, a "comprehensive," "holistic" and "coherent" new regulatory scheme. That each part of the new scheme was intended to be related to the whole is reflected by the fact that every proposed subchapter, except subchapter 3, contains cross-references to the other subchapters. Appellants asserted that there are "close to 100 separate cross-references between the various subchapters. 32 N.J.R. at 2328 through 2361." This assertion has not been denied by the DEP and, indeed, appears to be accurate.

Now, before us, in the face of appellant's challenge to the adoption of but a small part of the overall proposal without republication and notice, DEP contends the proposed regulations were not a cohesive, integrated and interdependent scheme, but rather that what was proposed was simply a collection of "separate, distinct regulatory initiatives," each standing independently of the other such that an adoption of one of those initiates was not a substantial change in what was proposed. In our view, this is not an accurate depiction. We reverse DEP's adoption of N.J.A.C. 7:15-8 without a "new notice of proposal and public opportunity to be heard" required under N.J.A.C. 1:30-6.3(a).*fn1

WQM plans are part of a state's federal mandate under the Water Pollution Control Act, 33 U.S.C.A. §§ 1251 to 1387, in order to obtain federal funding. 33 U.S.C.A. § 1288. See Toll Bros., Inc. v. N.J. Dept. of Envt'l Prot., 242 N.J. Super. 519, 526 (App. Div. 1990). In 1977, the Legislature adopted the Water Quality Planning Act, L. 1977, c. 75, N.J.S.A. 58:11A-1 to -16, as well as the Water Pollution Control Act, L. 1977, c. 74, then N.J.S.A. 58:10A-1 to -20 *fn2. Both acts form part of DEP's overall mandate to regulate water supply and water quality in the State. See New Jersey Builders Ass'n v. Fenske, 249 N.J. Super. 60, 64 (App. Div. 1991).

Pursuant to this legislative authority, in 1989, DEP repealed existing rules for WQM plans and replaced them with a new regulatory scheme. Id. at 63. Because the challenged rule here focuses upon septic dependent developments, we briefly characterize the regulation of such developments under the 1989 regulations. Prior to the adoption of N.J.A.C. 7:15-8, a development of forty- nine or less residential units could utilize septic systems. N.J.A.C. 7:15-4.4; 21 N.J.R. 3164 (October 2, 1989). For such developments that were within a designated sewer services area, septic systems for individual residences were excepted, provided that such residences would tie into a sewer system when it became available. N.J.A.C. 7:15-4.4(a), (b); 21 N.J.R. 3164 (October 2, 1989). For such developments outside a designated sewer service area, the 1989 rules merely required that the maps filed in connection with the plan depict areas, which would be served by septic systems. N.J.A.C. 7:15-5.18(c)(6)(i), (c)(7)(i); 21 N.J.R. 3169 (October 2, 1989).

The rules at issue here were originally proposed as subchapter 6 in the "sea change" proposal. 32 N.J.R. 2307 (July 3, 2000). Under the 1989 rules, DEP had "allowed for general service area designation . . . " of septic based systems that discharged less than 20,000 gallons per day (gpd) into groundwater; DEP proposed to withdraw those general wastewater service area designations and replace them with "individual service area designations for wastewater treatment facilities . . . that discharge more than 2,000 gpd and less than 20,000 gpd to ground water and a general service area designation for the remaining area for all new discharges to groundwater of less than 2,000 gpd." Ibid. The proposal would have required "all new developments associated with wastewater discharges of greater than 2,000 gpd, including residential developments totaling six or more dwelling units and expansions to existing facilities that have not previously assessed environmental impacts, to assess the impacts associated with that development through a modification to the areawide WQM plan." Ibid. (emphasis added). The rule that was adopted applies only to such proposed developments that are located outside of designated sewer service areas. For those septic-dependent developments, an amendment to the applicable WQM plan is required before proceeding with development. 32 N.J.R. 2308 (July 3, 2000).

Of course, since the developments at issue here were not, for the most part, subject to compliance with WQM requirements and the procedural aspects of the proposed rules have been withdrawn, what compliance procedures such developments must now follow are undefined in regulatory fashion. Indeed, DEP acknowledges that the existing rules which it determined not to replace, on to which the newly included septic-reliant developments have been grafted, provide "minimal detail" with regard to the procedural and substantive criteria for review of plan amendments. 32 N.J.R. 2287 (July 3, 2000). DEP, acknowledging this deficiency, stated that criteria for review of plan amendments for projects on septics will be determined on a "case-by-case" basis, 33 N.J.R. 710 (February 20, 2001), and that DEP "will be developing" guidance for this purpose, 33 N.J.R. 698 (February 20, 2001). In answers to frequently asked questions, ...


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