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In the Matter of Treatment Works Approval 09-0026.

May 10, 2011

IN THE MATTER OF TREATMENT WORKS APPROVAL 09-0026.


On appeal from the New Jersey Department of Environmental Protection, Treatment Works Approval No. 09-0026.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: March 30, 2011

Before Judges Axelrad and J. N. Harris.

The American Littoral Society and Pinelands Preservation Alliance appeal from a final determination of the New Jersey Department of Environmental Protection ("DEP"), issuing treatment works approval ("TWA") to the Jackson Township Municipal Utilities Authority ("JTMUA") to construct and operate two pumping stations, sanitary sewer lines and force mains to serve a 965 unit age-restricted development and two community centers ("Jackson Valley") in Jackson Township ("Jackson"). Appellants challenge the approval as arbitrary and capricious, arguing: (1) it is inconsistent with DEP regulations adopted in July 2008, N.J.A.C. 7:15-5.24, that prohibit the installation of sewer service systems in the environmentally sensitive area on which they claim the proposed project is to be built; (2) the DEP failed to conduct a consistency review as required by N.J.A.C. 7:15-3.1(a), concerning the environmental sensitivity of the area to have sewer service; and (3) the approval violates the objectives and policies of the National Parks and Recreation Act of 1978 (NPRA), 16 U.S.C.A. § 471i, because it allows the developer to install sewer pipes in the Pinelands National Reserve ("PNR"). We affirm.

I.

On January 29, 2009, the DEP received, and determined as administratively complete, the JTMUA's application for a treatment works approval for the proposed project. At the DEP's request, the JTMUA provided additional submissions in March 2009. On April 13, 2006, the DEP issued TWA No. 09-0026 to the JTMUA granting it permission to construct and operate two pumping stations, sanitary sewer lines and force mains to service 965 age-restricted homes and two community centers in accordance with the preliminary and final site plan and subdivision, Section 1 & 2, for Jackson Valley and the technical specifications in an engineering plan of November 2006, revised February l7, 2007.

Appellants filed an appeal. On December 9, 2009, we granted intervenor status to Hovbilt, Inc. ("Hovbilt"), the developer of the proposed Jackson Valley development.

II.

The essential facts are undisputed. Arthur P. Havighorst,

III., vice president and general counsel of Hovbilt, certified as to the history of the proposed development. Hovbilt is the owner of approximately 650 acres of property in Jackson, Ocean County, the site on which Jackson Valley is to be developed. The property is part of Jackson's Affordable Housing Plan approved by Judge Eugene Serpentelli, A.J.S.C. on January 10, 2000 following a fairness hearing. The proposed development is also located in the PNR.

The DEP's consideration of appropriate development in Jackson pursuant to its Water Quality Management Planning process began following the adoption of the Water Quality Planning Act, N.J.S.A. 58:11A-l to -16. The currently applicable Jackson Wastewater Management Plan ("WMP") was adopted on August 27, 1998, as part of the Ocean County Northern Planning Area Wastewater Management Plan. 30 N.J.R. 3861(a) (Oct. 19, 1998). A comparison of a map of the Jackson Valley project, the l998 Ocean County WMP map, and a map of Jackson's WMP reveals that the proposed development is within an existing sewer service area.

In late 2005, Hovbilt applied to the township and county planning boards for development approvals for the Jackson Valley project. On January 17, 2007, Hovbilt obtained Final Approval from the Ocean County Planning Board for the proposed development. On February 26, 2007, Hovbilt obtained Preliminary and Final Subdivision Approval, General Development Plan Approval, and Preliminary and Final Site Plan Approval from Jackson's Planning Board.

The proposed sewerage collection system was detailed on the plans approved by both boards. Before Hovbilt could construct the sewerage collection system as approved by the Final Site Plan Approval, it was required to obtain TWA from the DEP. As the JTMUA would be the party owning the sewerage collection system after its construction, the JTMUA was designated as the applicant for TWA. Accordingly, Hovbilt filed its plans with the JTMUA, which reviewed and approved them. The Ocean County Municipal Utilities Authority granted approval for the TWA application in January 2009, after which the JTMUA submitted the application to the DEP.

The application and accompanying submissions reflect the following prior authorizations and approvals for the project:

* Stream Encroachment Permit No. 1511-96-0007.9 SEA, issued September 4, 2001, and reissued September 27, 2006.

* Freshwater Wetlands Letter of Interpretation No. 1511-03-0024.1-FWW030001, originally issued October 17, 1997, reissued August 11, ...


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