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In re Highlands Water Protection and Planning Act Rules

July 22, 2008

IN RE HIGHLANDS WATER PROTECTION AND PLANNING ACT RULES, N.J.A.C. 7:38-1 ET SEQ.


On appeal from adoption of N.J.A.C. 7:38-3.2(g) and N.J.A.C. 7:38-3.4(b)(1) and (2) by the Department of Environmental Protection.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 20, 2008

Before Judges Skillman, Yannotti and LeWinn.

In August 2004, the Governor signed into law the Highlands Water Protection and Planning Act (the Highlands Act), N.J.S.A. 13:20-1 to -35.*fn1 This legislation establishes a state agency, called the Highlands Water Protection and Planning Council (Highlands Council), N.J.S.A. 13:20-4, which is delegated responsibility for land use planning for the Highlands Region, including adoption of a master plan.

The Highlands Act creates two areas within the Region: a preservation area, in which further development is strictly regulated, and a planning area, in which development consistent with the Act's goals is encouraged. See N.J.S.A. 13:20-7(b),(c); N.J.S.A. 13:20-10(b),(c). The Act delegates responsibility to the Department of Environmental Protection (DEP) to establish a permitting review program for all major development in the preservation area. N.J.S.A. 13:20-31 to -35. The Act also delegates responsibility to the DEP to adopt "rules and regulations establishing the environmental standards for the preservation area upon which the regional master plan adopted by the [Highlands Council] and the Highlands permitting review program administered by the [DEP] . . . shall be based."

N.J.S.A. 13:20-32. These rules and regulations are required to contain certain provisions specified in the subsections of N.J.S.A. 13:20-32, including "a septic system density standard." N.J.S.A. 13:20-32(e).

In May 2005, the DEP discharged its rulemaking responsibility under N.J.S.A. 13:20-32 by adopting Highlands Act rules, N.J.A.C. 7:38, which became known as the "interim" rules. See 37 N.J.R. 2050(a). These rules included the "septic system density standard" mandated by N.J.S.A. 13:20-32(e). Specifically, the rules provided that in the preservation area no more than one "individual subsurface disposal system" is permitted per eighty-eight acres of any lot containing "all forest" or twenty-five acres of any lot that "does not contain forest[.]" N.J.A.C. 7:38-3.4(b)(1),(2).

Appellant New Jersey Farm Bureau filed a notice of appeal challenging the validity of the interim rules. Thereafter, in December 2005, the DEP proposed to readopt these interim rules, with certain amendments, to produce a "final" set of Highlands Act rules and regulations. The final rules provided for the same septic density standards as the interim rules. The DEP set forth its justification for those standards in a document entitled, "Basis & Background of the Septic Density Standard of the Highlands Water Protection and Planning Act Rule at N.J.A.C. 7:38-3.4."

The DEP received extensive public comments regarding these proposed rules, including comments from the Farm Bureau. The final Highlands rules were adopted in November 2006, to become effective on December 4, 2006. 38 N.J.R. 5011(a).

Following the DEP's adoption of the final Highlands Act rules, the Farm Bureau filed an amended notice of appeal. The Farm Bureau's appeal challenges two of the final rules: the water allocation rule, N.J.A.C. 7:38-3.2(g), and the septic density rule, N.J.A.C. 7:38-3.4(b)(1),(2).

We conclude that the water allocation rule is valid. However, the Farm Bureau has raised substantial questions regarding the validity of the septic density rule that require an evidentiary hearing to determine whether the DEP has reasonably implemented the section of the ...


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